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Court of AppealPartially AllowedCivil Application (Eldoret) arising from Civil Appeal No. 354 of 2002· [2007] KECA 107 (KLR)

Rael Muyaka & 6 others v Waitaluk Land Disputes Tribunal Comprising of Mboto Kidai & 3 others [2007] KECA 107 (KLR)

Court of Appeal of Kenya
22 February 2007
JOJ.W. Onyango Otieno
1,149 words in judgment
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The bottom line

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Kenya's Court of Appeal gave farmers a second chance to appeal, but made them pay costs for missing deadlines.

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 Eldoret by Onyango Otieno JA on a notice of motion dated 8 November 2006 brought under rule 4 of the Court of Appeal Rules by Rael Muyaka and seven others. The applicants' earlier appeal, Civil Appeal No. 354 of 2002, had been struck out on 13 October 2006 for failure to include an amended notice of motion in the record of appeal. They sought enlargement of time to file and serve a fresh notice of appeal and record of appeal, alleging an inadvertent mistake by counsel, a good appeal from a Waitaluk Land Disputes Tribunal decision allegedly made contrary to the Land Disputes Tribunal Act, and an impending execution by the 1st respondent in Kitale SPMCC Land Case No. 76 of 1999 which would evict them from land occupied since 1975. The delay was 27 days, explained by lack of funds and the temporary loss of the court file; the respondents filed no replying affidavit and their counsel left the matter to the court. The court, guided by the settled rule 4 principles from Major Joseph Mweteri Igwate and Kagai Kimomori Watatua, held the explanation reasonable, the intended appeal not frivolous, and no prejudice shown. It granted the extension - 10 days for the notice of appeal and 30 days thereafter for the record - but ordered the applicants to pay the costs of the application in any event. The ruling binds subordinate courts and tribunals on the rule 4 discretion as part of the settled jurisprudence of the Court.

Key legal issues

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01

Principles governing extension of time under rule 4 of the Court of Appeal Rules

Holding

The discretion is unfettered but must be exercised on reasoned grounds, taking into account the length of and explanation for delay, prejudice, and the merits of the intended appeal, without conducting a mini-appeal.

Reasoning

The court adopted the summary of principles by Lakha JA in Major Joseph Mweteri Igwate and the additional observation of Waki JA in Kagai Kimomori Watatua that the factors are not limited. It weighed the 27-day delay, the applicants' unchallenged explanation of lack of funds and a lost court file, the absence of alleged prejudice, and the draft memorandum of appeal to conclude the application had merit.

p. 3
02

Effect of uncontroverted affidavit evidence

Holding

Allegations in a supporting affidavit that are not challenged by a replying affidavit stand as undisputed.

Reasoning

The respondents filed no replying affidavit and their counsel ultimately left the matter to the court. The applicants' claims of peasant-farmer status, lack of funds, payment dates and the lost court file were therefore accepted as establishing a reasonable explanation for the delay.

p. 3

Legal principles established

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  • On a rule 4 extension-of-time application the court exercises an unfettered discretion that must nonetheless be exercised on reason, not caprice, guided by settled factors: length of delay, explanation, prejudice, merits, effect on public administration, and the importance of compliance with time limits.
  • The list of rule 4 factors is not closed; the discretion remains unfettered by any fixed number of factors.

Court orders

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  1. 1.Time enlarged: applicants to file and serve notice of appeal within 10 days from 22 February 2007
  2. 2.Applicants to file the record of appeal within 30 days from the date the notice of appeal is filed
  3. 3.Applicants to pay the costs of the application to the respondents in any event

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Land Disputes Tribunal Act No. 181 of 1990not specified

Cases cited (2)

  • Major Joseph Mweteri Igwate vs. Muhura M'Ethare & Attorney General
    Civil Application No. Nai. 8 of 2000 (unreported)
  • Kagai Kimomori Watatua vs. Ngatia Kareko
    Civil Application No. Nai. 77 of 2005
On appeal from
High Court (adoption of Waitaluk Land Disputes Tribunal decision, Kitale SPMCC Land Case No. 76 of 1999)
SPMCC Land Case No. 76 of 1999
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, "Rael Muyaka & 6 others v Waitaluk Land Disputes Tribunal Comprising of Mboto Kidai & 3 others [2007] KECA 107 (KLR)", Case Analysis (2007). Civil Application (Eldoret) arising from Civil Appeal No. 354 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/107/eng@2007-02-22

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