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Court of AppealDismissedCivil Application E036 of 2022

Kariuki & 4 others v Office of the Auditor General & 2 others

Court of Appeal
7 October 2022
FSF SichaLE
888 words in judgment
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The bottom line

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The Court of Appeal refused to extend time for filing an appeal, finding an eight-month delay unexplained and unsupported by evidence.

What this practically means

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Executive summary

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This is a ruling by SichaLE, JA sitting singly, on the applicants' motion dated 7th February 2022 seeking leave to lodge an appeal out of time against a ruling of Rika, J in ELRC Petition No. 16 of 2020 delivered on 11th June 2021. The motion was brought under Article 159 of the Constitution and Rules 4, 5(2)(b), 41, 42 and 47 of the Court of Appeal Rules 2010. The applicants attributed the delay of about 8 months to the closure of their advocates' offices owing to the covid19 pandemic, and asserted they had an arguable appeal. The respondents filed neither a reply nor submissions. Applying the settled principles in Fakir Mohamed v Joseph Mugambi - length of delay, cause of delay, possibility of the appeal succeeding, and prejudice - the Court found the delay inordinate. The explanation was untenable: no dates were given for the alleged office closure or when the applicants became aware of the ruling, and no evidence supported the contentions. The Court declined to make a definitive finding on arguability, noting it sat as a single Judge, and found prejudice not demonstrated. The motion was dismissed with no order as to costs. The underlying High Court ruling was not disturbed; the intended appeal cannot now proceed unless further leave is obtained.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants should be granted leave to lodge an appeal out of time under Rule 4 of the Court of Appeal Rules 2010
  2. 2.Whether the delay of about 8 months was inordinate and satisfactorily explained

Key legal issues

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01

Extension of time under Rule 4

Holding

Application dismissed; applicants failed to demonstrate the Rule 4 principles

Reasoning

The delay of about 8 months was inordinate. The explanation - closure of advocates' offices due to covid19 - was unsupported by evidence, with no dates given for closure or when applicants became aware of the ruling. Prejudice was also not demonstrated. A single Judge cannot make a definitive finding on the arguability of the appeal from the draft memorandum.

p. 2

Legal principles established

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  • The Court has wide but unfettered discretion under Rule 4 which must be exercised judiciously, considering length and cause of delay, possibility of the appeal succeeding, and prejudice

Court orders

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  1. 1.The applicants' motion dated 7th February 2022 is dismissed with no order as to costs
  2. 2.Leave to lodge an appeal out of time is declined

The bench

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One judgment of the whole court — no separate or dissenting opinions.

FS
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi (ELRC)
ELRC Petition No. 16 of 2020
Jurisdiction invoked
Article 159 of the Constitution of Kenya; Rules 4, 5(2)(b), 41, 42 and 47 of the Court of Appeal Rules 2010

Relief refused

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Extension of time to file the Memorandum and Record of Appeal

Delay of about 8 months was inordinate and the reasons offered were unsupported and not tenable

p. 2

Costs

No order as to costs - each party to bear their own costs (motion dismissed with no order as to costs)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Court has wide and unfettered discretion in deciding whether to extend time or decline the same. However, in exercising its discretion, the Court should do so judiciously.
p. 2Rule 4 discretion
the length of the delay, the causes of the delay, the possibility of the appeal succeeding and prejudice to be occasioned to the parties.
p. 2Rule 4 considerations
the applicant's motion dated 7th February 2022, is without merit and the same is hereby dismissed with no order as to costs.
p. 2Final orders
I am of the considered opinion that the reasons put forth for the delay are not tenable and the same has not been explained to the satisfaction of this Court.
p. 2Explanation of delay

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, "Kariuki & 4 others v Office of the Auditor General & 2 others", Case Analysis (2022). Civil Application E036 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1108/eng@2022-10-07

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