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Court of AppealDismissedMotion dated 12th April 2023 (Court of Appeal)· [2024] KECA 373 (KLR)

Muindi v Muindi (Civil Application E157 of 2023) [2024] KECA 373 (KLR)

Court of Appeal of Kenya
28 March 2024
PKP. O. Kiage
734 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a six-year-old appeal because the applicant gave no convincing reason for the lengthy delay.

What this practically means

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Executive summary

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This was a single-judge application before the Court of Appeal (Kiage, JA) seeking extension of time and leave to file an appeal out of time from a judgment of the High Court at Kiambu delivered on 11th October 2017. The applicant, who had been engaged in succession proceedings over a subject property since the deceased's demise in 2005, sought to explain her six-year delay in filing a notice of appeal on grounds of her financial situation and her advocate's failure to advise her of her right of appeal. The respondent opposed, filing a replying affidavit, grounds of opposition and submissions asserting that the applicant had been represented throughout by a succession of able counsels whom she had paid, and that her plea of poverty was false. The court held that the six-year delay was long and inordinate and would, on its face, disentitle an applicant to a favourable exercise of discretion unless plausibly explained. The applicant's vague assertion of financial hardship - without stating what that situation was or when it changed - did not suffice, particularly as a notice of appeal is a simple document involving little outlay, and the Rules permit impecunious litigants to apply to file without paying fees. The claim that her advocates failed to advise her of the right of appeal was found incredible given her continuous representation and active involvement in applications in the superior court. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the applicant gave a plausible explanation for the inordinate delay

Holding

No - a vague assertion of financial hardship without particulars, where the applicant engaged and paid several advocates over many years, is not a rational basis for extending time

Reasoning

The court found the six-year delay disentitled the applicant absent explanation. The plea of financial situation was unparticularised, and the averment that her advocate failed to advise her of the right of appeal was incredible given her continuous representation and involvement in numerous applications below. The Rules provide a remedy for impecunious litigants to file without paying fees.

p. 2
02

Whether the interests of substantive justice warranted extension of time

Holding

No - the interests of substantive justice cannot override an unexplained, inordinate delay; the application failed on this basis

Reasoning

While the discretion under Rule 4 is wide and unfettered, it must be exercised rationally and judiciously. A six-year delay on the face of it disentitles an applicant to a favourable exercise of discretion unless explained. The applicant's grounds on the face of the motion asserted it would serve substantive justice, but no adequate explanation was proffered to warrant that outcome.

p. 2

Legal principles established

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  • The length of delay is a major consideration in a Rule 4 application; where the delay is long and inordinate and unexplained, the application for extension of time ought to fail

Court orders

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  1. 1.The motion dated 12th April 2023 seeking extension of time and leave to file appeal out of time is dismissed
  2. 2.Costs of the motion awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4
On appeal from
High Court of Kenya at Kiambu
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (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, "Muindi v Muindi (Civil Application E157 of 2023) [2024] KECA 373 (KLR)", Case Analysis (2024). Motion dated 12th April 2023 (Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/373/eng@2024-03-28

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