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Court of AppealAllowedNotice of motion lodged 30th September 2008 (Civil Appeal proceedings following struck-out Civil Appeal No. 171 of 2003)

John Kimani Ngata & another v James Maina Leley & 3 others [2009] KECA 147 (KLR)

Court of Appeal of Kenya
25 September 2009
ROR.S.C. Omolo
940 words in judgment
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The bottom line

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Kenya's Court of Appeal gave land claimants another chance to appeal after their case was struck out, ruling that a short, explained delay should not kill a case.

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 delivered by R.S.C. Omolo, JA on 25th September 2009, on the applicants' notice of motion lodged on 30th September 2008 seeking extension of time to file a notice of appeal and record of appeal. The underlying dispute concerns a claim by John Kimani Ngata and Jacob Kipkemboi Busienei to land parcel UG/KIMUMU/224 registered in the name of James Maina Leley by adverse possession, by originating motion filed in the High Court at Eldoret on 26th October 1998. Omondi Tunya, J dismissed the originating motion on 22nd May 2003 for failure to prosecute. The applicants filed a notice of appeal and lodged Civil Appeal No. 171 of 2003, which was struck out on 24th September 2008; six days later they filed the present motion. The respondents opposed on two grounds: non-inclusion of the estate of a deceased interested party, Joseph Kipkemei Chebatei, and the sub-division and transfer of the suit land to third parties not joined or served. The judge accepted that the six-day delay was satisfactorily explained, held that Joseph's death was not a proper ground for refusing the extension even if his claim had abated, and held that the sub-divisions and transfers post-dated the motion, so the applicants could serve all persons directly affected under rule 76(1). The motion was allowed with directions to file and serve the notice of appeal within seven days and the record of appeal within twenty-one days, with costs in the appeal.

Key legal issues

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01

Whether the six-day delay in lodging the present motion was satisfactorily explained

Holding

Yes. The court accepted the explanation offered by the applicants and their counsel; respondents did not contend otherwise.

Reasoning

The previous appeal was struck out on 24th September 2008 and the motion was filed six days later, on 30th September 2008. Neither counsel for the 1st respondent nor counsel for the 2nd and 3rd respondents contended that the delay was unexplained; they opposed on other grounds. The judge was therefore satisfied and accepted the applicants' explanation.

p. 2
02

Whether failure to include the estate of the deceased interested party Joseph Kipkemei Chebatei rendered the motion incompetent

Holding

No. The death of Joseph was not a proper basis for refusing to extend time, even though any claim by him may have abated.

Reasoning

The court was uncertain whether any substitution or appointment of a personal representative had occurred, and whether the claim abated under rule 55(7) or 96(2). However, it was certain that the death of Joseph ought not to be a reason to refuse extension of time; abatement of his claim, if any, is a separate question to be determined in the appeal.

p. 2
03

Whether sub-division and transfer of the suit land to unserved third parties barred the extension

Holding

No. The sub-divisions and transfers took place after the motion was filed, and the applicants can serve all persons directly affected by the appeal under rule 76(1) of the Court's rules.

Reasoning

The respondents argued that transferees of the sub-divided parcels were not included or served. The court held this was answered by the chronology: the transfers post-dated the filing of the motion, and an extension of time would enable the applicants to serve the notice and record of appeal on all persons directly affected, as rule 76(1) provides.

p. 2

Legal principles established

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  • A short delay in filing a fresh notice of appeal after an earlier appeal is struck out may be excused where satisfactorily explained, and unexplained non-joinder of a deceased party's estate or of subsequent transferees of subdivided land should not by itself defeat an extension of time; the applicants can serve all persons directly affected under rule 76(1).
  • Sub-division and transfer of the suit land to parties not before the court, occurring after the motion was filed, is not a ground to refuse extension of time because those persons can be served as persons directly affected by the appeal.

Court orders

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  1. 1.The notice of motion lodged on 30th September 2008 is allowed
  2. 2.The applicants shall file and serve their notice of appeal within seven (7) days from the date of the order
  3. 3.The applicants shall thereafter file and serve their record of appeal within twenty one (21) days from the date the notice of appeal is lodged in the Court
  4. 4.The costs of the motion shall be in the appeal
On appeal from
High Court at Eldoret
Originating motion dated 26th October 1998 (Land Parcel No. UG/KIMUMU/224)
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal to extend time under its rules (reference to rules 55(7), 76(1) and 96(2) of the Court's rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "John Kimani Ngata & another v James Maina Leley & 3 others [2009] KECA 147 (KLR)", Case Analysis (2009). Notice of motion lodged 30th September 2008 (Civil Appeal proceedings following struck-out Civil Appeal No. 171 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/147/eng@2009-09-25

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