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Court of AppealAllowedCivil Appeal No. E112 of 2021 (Application dated 9th April, 2021)· [2021] KECA 250 (KLR)

Njagi & 36 others v Attorney General (Civil Appeal (Application) E112 of 2021) [2021] KECA 250 (KLR)

Court of Appeal of Kenya
3 December 2021
2,631 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a two-year-late appeal because the delay was caused by court delays and Covid-19, not the appellant's negligence.

What this practically means

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Executive summary

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This is an unopposed single-judge application in the Court of Appeal at Nairobi brought by the appellants under sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4 and 42 of the Court of Appeal Rules, seeking leave to file a record of appeal out of time against a ruling of R. Mwongo, J. of 4th April, 2019 in High Court Civil Case No. 528 of 2009, and to deem the record of appeal already filed in Civil Appeal No. E112 of 2021 as properly filed. The underlying dispute concerned the High Court's refusal to award interest on damages. Nambuye, JA set out the familiar factors from the Supreme Court's Salat decision: length of delay, reason for delay, arguability of the appeal, and prejudice to the respondent. The court measured the delay of two years and five days from the ruling but found that the applicants had timeously filed a notice of appeal and letter bespeaking proceedings, and that the delay was attributable to the Deputy Registrar's late supply of proceedings and a certificate of delay (received 28th January, 2021), compounded by Covid-19 disruptions which the court took judicial notice of. Measured from the date of capacitation, the delay was not inordinate and was excusable. The four proposed grounds on interest on damages were found arguable, no prejudice was demonstrated by the unopposing respondent, and the constitutionally entrenched right to be heard favoured validation of the appeal. The application was allowed with leave granted, time extended to 9th March, 2021, the record deemed properly filed, and costs made to abide the appeal's outcome.

Key legal issues

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01

Period of delay and whether it was inordinate

Holding

The delay of two years and five days from the impugned decision was not inordinate when measured from the date of capacitation (receipt of proceedings and certificate of delay on 28th January, 2021), and was sufficiently explained as excusable.

Reasoning

The court measured the delay both from the impugned ruling and from the date the applicants were supplied with certified proceedings and a certificate of delay. The notice of appeal and letter bespeaking proceedings were timeously filed; the delay was attributable to the Deputy Registrar's failure to supply proceedings and to Covid-19 disruptions, a matter of judicial notice. Measured from capacitation, the delay was about two months, which was not inordinate and was excusable.

p. 5
02

Reason for the delay

Holding

Failure of the Deputy Registrar to timeously supply proceedings and a certificate of delay, coupled with Covid-19 pandemic disruptions, constituted plausible and sufficient explanation.

Reasoning

The applicants exhibited documentation showing a timeously filed notice of appeal and letter bespeaking proceedings. Proceedings were only supplied on 4th November 2020 and the certificate of delay on 28th January 2021 after numerous follow-ups. The court took judicial notice of Covid-19 quarantine measures affecting the judiciary's service delivery and found the applicants' assertions undisputed and plausible.

p. 5
03

Arguability of the intended appeal

Holding

The four grounds of appeal challenging the Judge's refusal to award interest on damages satisfied the threshold for arguability.

Reasoning

The memorandum of appeal raised four grounds alleging the learned Judge erred in declining interest on general damages, failed to give cogent reasons, exercised discretion arbitrarily, and ignored the objective for which the law provides interest. The court applied the standard that an arguable appeal need not succeed but must warrant interrogation and a response, and found the grounds met that threshold.

p. 5
04

Prejudice to the respondent and the right to be heard

Holding

No prejudice was demonstrated by the respondent; the constitutionally entrenched right to be heard on appeal favoured granting the relief.

Reasoning

The application was unopposed and no response was filed, so no prejudice was demonstrated. Relying on Leiyagu, Mbaki and Sherally, the court held the right to be heard is constitutionally entrenched, the cornerstone of the rule of law, and a decision reached in violation of it will be nullified as a breach of natural justice. Ends of justice dictated that the applicants be heard on their already-filed appeal.

p. 6

Legal principles established

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  • Extension of time under Rule 4 is an equitable remedy, not a right, granted at the court's discretion to a deserving party who lays a basis for it
  • An arguable appeal need not succeed; it need only warrant the Court's interrogation and a response from the opposite party
  • The right to be heard on appeal is constitutionally entrenched and is the cornerstone of the rule of law

Court orders

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  1. 1.Leave be and is hereby granted to the applicant to appeal out of time against the decision of the High Court at Nairobi, by R. Mwongo, J. dated 4th April, 2019 in Nairobi HC Civil Case No. 528 of 2009
  2. 2.Leave to file an appeal granted to the appellants is extended to the date the record of appeal was filed on 9th March, 2021
  3. 3.Civil Appeal No. E112 of 2021 herein filed on 19th March, 2021 be and is hereby therefore deemed to be properly filed
  4. 4.Costs of the application to abide the outcome of the Appeal in E112 of 2021
On appeal from
High Court of Kenya at Nairobi
Civil Case No. 528 of 2009
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4 and 42 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njagi & 36 others v Attorney General (Civil Appeal (Application) E112 of 2021) [2021] KECA 250 (KLR)", Case Analysis (2021). Civil Appeal No. E112 of 2021 (Application dated 9th April, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/250/eng@2021-12-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.