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Court of AppealPartially AllowedNot stated in the judgment· [2024] KECA 329 (KLR)

Damaris Wanjiku Nduati & 1 other v Peter Njoroge Ndung’u

Court of Appeal of Kenya
28 March 2024
PKP. O. Kiage
872 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal let late appeal papers be regularized, but a single judge cannot grant a stay of execution — that needs a separate application.

What this practically means

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Executive summary

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This was a single-judge ruling of the Court of Appeal at Nairobi delivered by P. O. Kiage, JA on 28th March 2024 on a notice of motion dated 22nd May 2023. The applicants sought, among other prayers, extension of time to file the record of appeal against a judgment of the High Court (Hon. Lady Justice Lucy Mbugua) delivered on 11th May 2023, which had allowed the respondent's claim and dismissed their counterclaim. The applicants had filed a notice of appeal on 15th May 2023 and, curiously, brought the extension application only seven days later - before the sixty-day period for lodging the record had expired. By the time the motion was heard on 24th October 2023, that period had lapsed. The judge observed that a motion brought before time would ordinarily be struck out as premature, but having heard it after the expiry of the sixty days, he chose a pragmatic course. He allowed prayer (5), directing that the record of appeal be filed and served within fourteen days if not already filed, and granting leave to regularize any filing made outside the sixty days so that the record would be deemed properly lodged. He expressly declined to pronounce on the prayers for stay of execution under Rule 5(2)(b), which he considered beyond a single judge's remit and best pursued separately. The respondent's opposition, lodged nearly three months after the motion, was directed at the stay prayers and did not resist the extension request. Costs were made costs in the appeal.

Key legal issues

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01

Extension of time where the application was filed before the prescribed period expired

Holding

The motion, though filed prematurely, was heard after the 60-day period had lapsed; the court treated the filing as requiring regularization and granted leave.

Reasoning

The applicants filed the notice of appeal on 15th May 2023 and had sixty days to lodge the record of appeal. Filing the extension motion just seven days later was premature. By the hearing date of 24th October 2023 the sixty days had long passed. The judge declined to strike out the premature motion, instead granting leave so any record filed out of time would be deemed properly lodged.

p. 2
02

Limits of a single judge's jurisdiction

Holding

A single judge under Rule 4 can only deal with extension of time; stay of execution under Rule 5(2)(b) requires a full bench or separate application.

Reasoning

The motion sought more than half a dozen prayers, some of which only a full bench could handle. The single judge steered clear of the stay-of-execution prayers, noting the respondent's opposition was directed at that part of the motion, and confined his decision to the Rule 4 extension-of-time prayer.

p. 1

Legal principles established

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  • An application for extension of time brought before the prescribed period has expired is premature, but a court may pragmatically regularize a filing made after the period where the motion was lodged before time.

Court orders

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  1. 1.Prayer (5) of the motion allowed
  2. 2.The record of appeal (if not yet filed) to be filed and served within fourteen (14) days
  3. 3.If the record of appeal was already filed outside the 60 days prescribed by the Rules, leave granted to regularize such filing and the record deemed properly lodged
  4. 4.Costs of the motion to be in the appeal or intended appeal
On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single judge, extension of time)

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, "Damaris Wanjiku Nduati & 1 other v Peter Njoroge Ndung’u", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/329/eng@2024-03-28

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