Ngetich v Ngetich & 4 others (Civil Application 118 of 2020) [2023] KECA 1184 (KLR)
The bottom line
#Kenya's Court of Appeal allowed an appeal filed late because the party was never notified that the judgment had been delivered electronically.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of preliminary objection dated March 6, 2023 is sustainable as a pure point of law
- 2.Whether the applicant should be granted leave to file an appeal out of time under rule 4 of the Court of Appeal Rules
Key legal issues
#Whether the preliminary objection raising inordinate delay was a pure point of law
It was not; whether delay is inordinate requires interrogation of facts, so the objection failed
Applying Mukisa Biscuit and Oraro v Mbajah, the court held that an objection asserting inordinate and unexplained delay depends on factual matters calling for proof and cannot be determined as a preliminary point of law. The objection was therefore dismissed without examination of the merits of the delay claim.
Whether the applicant deserved an extension of time to appeal
Yes; there was no notice of electronic delivery of the judgment, and given that lapse the motion was allowed
The judgment was delivered electronically on June 11, 2020, about three months before the application was filed. The court found it was not denied that no notice of the delivery was given to the applicant, who only learned of the judgment on September 29, 2020 via Kenya Law. In view of that lapse, fairness dictated allowing the motion.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot rest on disputed facts requiring evidence
- In deciding an application to extend time under rule 4, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent
Court orders
#- 1.The notice of preliminary objection dated March 6, 2023 is dismissed
- 2.The applicant's motion dated September 30, 2020 is allowed with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Not stated
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act (cap 9) and rules 4, 41, 43, 47 and 75(2) of the Court of Appeal Rules
Relief refused
#Costs in favour of the applicant or respondents
The court allowed the motion with no order as to costs
Costs
No order as to costs
Quotable passages
#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 issue as to whether there has been inordinate delay can certainly not be pleaded as a pure point of law as the same would require interrogation of facts.
It is now well settled that the decision whether or not to extend time for appealing is essentially discretionary.
It is not denied that prior to the delivery of the judgment electronically, no notice of the said delivery had been made to the applicant.
Accordingly, the applicant’s motion dated September 30, 2020 is hereby allowed with no order as to costs.
Issues in the judgment
#Paragraph numbering in the judgment is irregular - the text following paragraph 10 runs into a repeated '11.' and paragraph 9's quotation ends mid-sentence
The decision below is not identified; the impugned ruling and the parties to it are not fully named in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngetich v Ngetich & 4 others (Civil Application 118 of 2020) [2023] KECA 1184 (KLR)", Case Analysis (2023). Not stated in the judgment (motion dated September 30, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1184/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.