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Court of AppealAllowedCivil Application E025 of 2022

Mary Wambui Munyori v Gabriel Njuguna Kanyua (Suing as the legal representative of Maria Wambui Kanyua)

Court of Appeal
15 December 2022
980 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal excused an 11-month appeal delay because the court registry, not the litigant, caused it.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nakuru (F SichaLE, JA) on a motion dated May 25, 2022 under Rules 4, 42 and 43 of the Court of Appeal Rules, seeking extension of time to file the record of appeal against the judgment of the Environment & Land Court at Nyahururu (Angima, J) dated June 24, 2021 in ELC Case No. 17 of 2019, which dismissed the applicant's suit. The applicant filed a notice of appeal on July 1, 2021, within time, and requested certified proceedings by letter dated June 25, 2021, inadvertently failing to serve the respondent. She was supplied with certified copies on May 17, 2022, and filed the motion eight days later. The respondent declined to respond and asked the court to determine the application on the applicant's materials. Applying the Fakir Mohamed principles - length of delay, cause of delay, arguability, and prejudice - the court found the roughly 11-month delay inordinate but fully explained, holding that the delay occasioned by preparation of certified proceedings was not attributable to the applicant, as confirmed by a Certificate of Delay. The court found the intended appeal arguable, while noting it could not make a definitive finding sitting as a single judge, and held that the respondent, having not opposed the motion, demonstrated no prejudice. The motion was allowed: the applicant was to file and serve the record of appeal within 45 days, failing which the orders would stand vacated, with costs of the motion abiding the outcome of the intended appeal.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted extension of time to file the record of appeal, considering the length and cause of the delay, the arguability of the intended appeal, and prejudice to the respondent

Key legal issues

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01

Whether the delay of about 11 months in filing the record of appeal was inordinate and adequately explained

Holding

The delay was inordinate but fully explained: a Certificate of Delay showed proceedings became ready on May 17, 2022, and the motion was filed 8 days later.

Reasoning

The court accepted that the notice of appeal was filed within time on July 1, 2021. The subsequent delay arose from the time taken to prepare certified copies of the proceedings, evidenced by a Certificate of Delay showing readiness on May 17, 2022. Since the applicant moved within 8 days of receiving the copies, the delay was not attributable to her and was excused.

p. 2
02

Whether the intended appeal is arguable and whether the respondent would suffer prejudice

Holding

The intended appeal is arguable, and the respondent, who did not oppose the motion, demonstrated no prejudice.

Reasoning

Sitting as a single judge, the court could not make a definitive finding on the appeal's prospects but, having perused the memorandum of appeal, found it arguable and worthy of consideration. On prejudice, the respondent neither opposed the application nor attempted to demonstrate any prejudice, so the court was satisfied none would be suffered.

p. 2

Legal principles established

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  • The court has wide but judicious discretion under Rule 4 to extend time, guided by the length of delay, cause of delay, possibility of the appeal succeeding, and prejudice to the parties.
  • Delay attributable to the court registry in preparing certified proceedings is not attributable to the applicant for purposes of Rule 4.

Court orders

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  1. 1.Extension of time granted to file and serve the record of appeal within 45 days from the date of the ruling, failing which the orders shall stand vacated
  2. 2.Costs of the motion to abide the outcome of the intended appeal

The bench

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

majority

Wrote the judgment

On appeal from
Environment & Land Court at Nyahururu
ELC Case No. 17 of 2019
Jurisdiction invoked
Rules 4, 42 and 43 of the Court of Appeal Rules (extension of time to file record of appeal)

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
This delay is certainly not attributable to the applicant and the instant motion is dated May 25, 2022, which is 8 days after the applicant received certified copies of the proceedings.
p. 2Delay caused by preparation of certified proceedings
The applicant shall file and serve the record of appeal within 45 days from the date of this ruling failure to which these orders shall stand vacated.
p. 2Final orders
The costs of this motion shall abide the outcome of the intended appeal. Orders accordingly.
p. 2Costs

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, "Mary Wambui Munyori v Gabriel Njuguna Kanyua (Suing as the legal representative of Maria Wambui Kanyua)", Case Analysis (2022). Civil Application E025 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1383/eng@2022-12-15

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