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Court of AppealDismissedCivil Application (not stated in judgment)· [2007] KECA 295 (KLR)

Siuma Jacob Mukalama v Chairman Malava Land Disputes Tribunal & 2 others [2007] KECA 295 (KLR)

Court of Appeal of Kenya
13 June 2007
WDW. S. Deverell
811 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse a five-month delay in filing an appeal because the explanation lacked dates and evidence.

What this practically means

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Executive summary

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This was a single-judge application under rule 4 of the Court of Appeal Rules seeking an extension of time to file and serve a Notice of Appeal and Record of Appeal, together with a prayer to dispense with service on the 2nd respondent. The intended appeal targeted a ruling of G.B.M. Kariuki J. delivered on 5 May 2006, in which the High Court struck out grounds of opposition as inappropriate in judicial review proceedings and, in the absence of a statement and verifying affidavit under Order LIII, dismissed as unopposed a motion seeking certiorari to quash a decision of the Kabras Land Disputes Tribunal concerning three pieces of land. Counsel for the applicant conceded a delay of about five months, from 5 May 2006 to 5 October 2006, explaining it only by the need for new counsel to come on record; no dates were given for the instruction of the original or new advocates. Applying the well-known principles in Leo Sila Mutiso v Rose Helen Wangari Mwangi — length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent — Deverell JA held the delay substantial, the explanations unconvincing, and the evidence inadequate. The court also noted the underlying ruling left the Tribunal's decision standing. The application was dismissed with costs. The decision below was not disturbed; this was an interlocutory application, not an appeal.

Key legal issues

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Extension of time to appeal out of time under rule 4 of the Court of Appeal Rules

Holding

The application for extension of time was refused because the approximately five-month delay was substantial and the explanation — the need to change advocates — was not adequately supported by dates or evidence.

Reasoning

The court applied the settled principles from Leo Sila Mutiso v Rose Helen Wangari Mwangi: length of delay, reason for delay, arguability of the intended appeal, and prejudice to the respondent. The applicant gave no dates for instructing original or new advocates, and new counsel had not acted speedily in filing the application on 4 October 2006 after the delay began on 5 May 2006. The bare assertion of overwhelming chances of success did not cure the unexplained delay.

p. 2

Legal principles established

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  • The decision whether or not to extend time for appealing is discretionary, and the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

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  1. 1.The application for extension of time is dismissed with costs
On appeal from
High Court of Kenya
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, "Siuma Jacob Mukalama v Chairman Malava Land Disputes Tribunal & 2 others [2007] KECA 295 (KLR)", Case Analysis (2007). Civil Application (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/295/eng@2007-06-13

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