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Court of AppealDismissedNot stated in the judgment

Kanampiu v M’rithaa (Civil Appeal E061 of 2024) [2024] KECA 1354 (KLR)

Court of Appeal
4 October 2024
1,139 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a five-year-old appeal because the applicant couldn't explain the delay or show the appeal had merit.

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 Nyeri, delivered by Lesiit, JA on 4th October 2024, on a Notice of Motion dated 5th July 2024 brought under Article 159(2) of the Constitution, sections 3, 3A and 3B of the Appellate Jurisdiction Act and rule 4 of the Court of Appeal Rules, 2022. The applicant, Dr. M'rithaa Njeru Kanampiu, sought extension of time to file an appeal against a judgment delivered on 13th June 2019, having filed a notice of appeal timeously on 25th June 2019 but never a record or memorandum of appeal. The respondent, Grace Kangai M'rithaa, opposed, deposing that the applicant had been granted temporary stay of execution to enable him appeal but slept on it for three years. The court restated the settled four-factor test for rule 4 applications - length of delay, reason for delay, chances of success, and prejudice to the respondent - drawing on Fakir Mohamed v Joseph Mugambi and Leo Sila Mutiso v Rose Hellen Wangari Mwangi. The court found the five-year delay inordinate and unexplained: the applicant filed no supporting affidavit, did not annex the review application or ruling relied upon, and did not annex a memorandum of appeal to demonstrate arguability. He was found guilty of laches, and the respondent stood to suffer great prejudice. The application was dismissed with costs to the respondent.

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 an extension of time to file an appeal out of time under rule 4 of the Court of Appeal Rules, 2022
  2. 2.Whether the delay of five years was adequately explained
  3. 3.Whether the intended appeal has chances of success
  4. 4.Whether the respondent would suffer prejudice if the extension were granted

Key legal issues

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01

Factors governing exercise of discretion under rule 4 for extension of time

Holding

The four key factors are the length of delay, reason for delay, chances of success of the appeal, and prejudice to the respondent; the discretion is unfettered but must be exercised judicially.

Reasoning

The court traced the settled jurisprudence from Waki, JA in Fakir Mohamed v Joseph Mugambi, confirmed by the full court, and Leo Sila Mutiso v Rose Hellen Wangari Mwangi, which enumerated the four factors. The court held that although the discretion is unfettered, it must be exercised judicially and not on whim, sympathy or caprice, guided by these factors.

p. 3
02

Burden on applicant to explain delay and demonstrate arguability

Holding

The applicant failed to substantiate reasons for the five-year delay, produced no supporting affidavit or annexures, and did not annex a memorandum of appeal to show arguability.

Reasoning

The applicant blamed his former advocate but filed no affidavit to support the grounds on the motion and did not annex the review application or ruling relied upon. Even if review was filed in 2021, the gap of over two years since the notice of appeal was unexplained. Without a draft memorandum of appeal, arguability could not be assessed.

p. 2
03

Laches and prejudice to the respondent

Holding

The respondent stood to suffer great prejudice; the applicant was guilty of laches, having slept on a stay of execution for three years with no diligence.

Reasoning

The respondent deposed that the applicant had been granted temporary stay of execution to enable him file his appeal but took no action for three years. The court found the five-year delay unexplained and inordinate, that the applicant showed no diligence or genuine intention to pursue an appeal, and that equity did not assist him.

p. 3

Legal principles established

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  • The key factors for extension of time are the period of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent; discretion under rule 4 must be exercised judicially, not on whim, sympathy or caprice
  • An applicant must substantiate reasons for delay with evidence, including annexures, and demonstrate the intended appeal is arguable by annexing a draft memorandum of appeal

Court orders

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  1. 1.Application for extension of time dismissed with costs to the respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 159(2) of the Constitution; sections 3, 3A and 3B of the Appellate Jurisdiction Act; rule 4 of the Court of Appeal Rules, 2022

Relief refused

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Extension of time to file an appeal out of time

Inordinate and unexplained five-year delay; no demonstration of arguable appeal; prejudice to respondent

p. 3

Costs

Dismissed with costs to the respondent

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.

It is clear that the key factors to be considered in an application for extension of time are four: the period of delay, the reason for the delay, the chances of the appeal succeeding if application is granted and the degree of prejudice to the respondent if the application is granted.
p. 2Rule 4 extension-of-time factors
I am mindful of the fact that the discretion under rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice.
p. 3Judicial exercise of discretion
I have come to the conclusion that the application lacks in merit, that the applicant is undeserving of the exercise of discretion in his favour, and that the application is for dismissal, which I hereby do with costs to the respondent.
p. 3Final orders - dismissal

Issues in the judgment

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minor

The judgment refers to a ruling delivered on 10th January 2024 in one passage and 10th January 2021 in another

minor

The judgment describes the five-year delay inconsistently, stating in one place that the application date is 'five days since the judgment was delivered'

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, "Kanampiu v M’rithaa (Civil Appeal E061 of 2024) [2024] KECA 1354 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1354/eng@2024-10-04

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