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Court of AppealAllowedCivil Application No. NAI. 179 of 1988

OMARI KIPKEMEI SING'OEI & 5 OTHERS vs ABIGAEL JELAGAT ROTICH HURT [1990] KECA 8 (KLR)

Court of Appeal
6 July 1990
JGJ.E. Gicheru
644 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave land dispute appellants more time to file, prioritizing final resolution of land cases over strict deadlines.

What this practically means

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Executive summary

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This is a single-judge chambers ruling of the Court of Appeal at Nairobi by Gicheru, J.A., on an application by Omari Kipkemei Sing'oei and five others for an extension of 7 days to file and serve their record of appeal in an intended appeal from a judgment of Sachdeva, J. of the High Court dated 23 July 1985 in H.C.C.C. No. 3096 of 1984. Notice of Appeal had been lodged on 2 August 1985 and certified proceedings supplied on 15 April 1987, but the record was not prepared until September 1988, with the application filed on 23 November 1988. The applicants attributed the delay to the instructing client's hypertension, his inability to travel from Kitali to Nairobi, difficulties raising filing fees, and counsel's illness. Counsel for the respondent opposed, arguing that substantial periods were unexplained and that no arguable appeal was demonstrated. The court found the explanation insufficient except for two periods, but noting that the subject matter was land held by several persons as tenants in common in equal shares, it followed the practice stated by Nyarangi, J.A. in Mangoli Wamalwa Machine v Nafula Mbingu Mukhwana that land appeals should be filed wherever just and reasonably possible so the court may make a final determination. Holding the intended appeal arguable, the court allowed the application and extended time by 7 days, awarding costs of the application to the respondent, as the applicants' counsel properly conceded.

Questions the Court framed

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

  1. 1.Whether the applicants' explanation for the delay in filing the record of appeal was sufficient
  2. 2.Whether the applicants had an arguable intended appeal
  3. 3.Whether the time for filing and service of the record of appeal should be extended

Key legal issues

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01

Extension of time to file and serve a record of appeal

Holding

Despite insufficient explanation for substantial portions of the delay, the court exercised its discretion to extend time by 7 days because the subject matter was land held by tenants in common and the intended appeal was arguable.

Reasoning

The court acknowledged that, save for two periods, the applicants' reasons for the delay were insufficient. However, applying the practice articulated in Mangoli Wamalwa Machine v Nafula Mbingu Mukhwana, that land disputes should, where just and reasonably possible, be brought before the court for final determination, and on a perusal of the documents indicating an arguable appeal, Gicheru, J.A. in chambers held it just to allow the application and extended time by 7 days.

p. 2

Legal principles established

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  • In land matters, the Court of Appeal's practice is that, where it is just and reasonably possible, an appeal should be filed so that the court can make a final determination on land disputes, and this favours extension of time where the intended appeal is arguable.

Court orders

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  1. 1.The time for the filing and service of the applicants' record of appeal was extended by 7 days from the date of the order
  2. 2.Costs of the application awarded to the respondent

The bench

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

JG
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3096 of 1984
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal to extend time for filing an appeal (application for extension of time in an intended 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 practice of this court is that with regard to land matters, wherever it is just and reasonably possible, an appeal should be filed in order for this court to make a final determination on such land disputes.
p. 2Practice on land appeals and extension of time
In the exercise of my judicial discretion, I accordingly allow the applicants' application and order that the time for the filing and service of the applicants' record of appeal be extended by 7 days from today's date.
p. 2Final orders - extension granted

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, "OMARI KIPKEMEI SING'OEI & 5 OTHERS vs ABIGAEL JELAGAT ROTICH HURT [1990] KECA 8 (KLR)", Case Analysis (1990). Civil Application No. NAI. 179 of 1988. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/8/eng@1990-07-06

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