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Court of AppealDismissedCivil Application (Nyeri) - Notice of Motion dated 18th November, 2010· [2011] KECA 6 (KLR)

Joseph Kirweya Kahwai & 5 others v Charles Kirweya Kahwai & 5 others [2011] KECA 6 (KLR)

Court of Appeal of Kenya
1 December 2011
JOJ.W. Onyango Otieno
1,095 words in judgment
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The bottom line

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The Court of Appeal refused to extend time to appeal because the family delayed over a year without explaining why and filed no supporting evidence.

What this practically means

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Executive summary

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This is a ruling by the single Judge of the Court of Appeal at Nyeri, J.W. Onyango Otieno JA, on a notice of motion dated 18th November 2010 in which Joseph Kirweya Kahwai and five others sought an extension of time to appeal against a superior court ruling delivered on 24th November 2009. The applicants explained that they became aware the matter was concluded only when they engaged an advocate in June 2010, and that a review application they filed was dismissed on 23rd July 2010. The respondents opposed, contending the delay was inordinate whether measured from the ruling or the review refusal, and that the application lacked annexures such as the proceedings and rulings needed for the Court to assess arguability. The Judge applied the settled factors from Leo Sila Mutiso v Rose Hellen Wangari Mwangi: length of delay, reason for delay, chances of success, and prejudice to the respondent. He found the grounds did not explain why the appeal process was not set in motion, that the delay was unexplained and inordinate, and that no material existed on which to exercise discretion. The argument that the family land dispute required a hearing in the interest of peace was rejected, since it was raised only in reply and the law cannot be ignored for peace. Applying Shah v Mbogo, the Court held discretion aids the diligent, not those who sleep on their rights. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the delay of over one year (or four and a half months from the review refusal) was excusable

Holding

The delay was inordinate and unexplained; the grounds did not state why the applicants did not institute the appeal in accordance with the Rules.

Reasoning

The Court found the grounds advanced did not explain the failure to set the appeal process in motion, and the applicants' pursuit of review did not excuse the delay after refusal. The applicants were treated as having slept on their rights, and the need for family peace could not override compliance with the law where one party ignored it.

p. 1
02

Whether the application contained sufficient material for the exercise of discretion

Holding

It did not; the proceedings and rulings of the superior court were not annexed, leaving the Court unable to assess arguability.

Reasoning

Following Shah JA's ruling in Machage v Mageto, and the factors in Leo Sila Mutiso, the Court held it could not form an informed view on the chances of success without the proceedings and rulings. The family-peace argument was raised only in reply, not in the supporting affidavit, and could not cure the evidential deficit.

p. 2

Legal principles established

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  • In deciding an application to extend time for appealing, 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.
  • Discretion to extend time is exercised to avoid injustice to a diligent party, not to assist one who has slept on rights.
  • An applicant for extension of time must place sufficient material before the single Judge explaining the delay and demonstrating the appeal's arguability.

Court orders

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  1. 1.The application is dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 13(5)
  • Appellate Jurisdiction Actsections 3A and 3B

Cases cited (3)

  • Dr. W.G. Machage t/a Pastor Machage Memorial Hospital vs. Charles Mageto t/a D'Akianga Stationers
    C.A Civil Application No. Nai. 28 of 2001 (NRB), unreported
  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    Civil Application No. Nai. 251 of 1995
  • Shah v. Mbogo & Another
    (1967) EA 116
On appeal from
High Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time), read with sections 3A and 3B of the Appellate Jurisdiction Act

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, "Joseph Kirweya Kahwai & 5 others v Charles Kirweya Kahwai & 5 others [2011] KECA 6 (KLR)", Case Analysis (2011). Civil Application (Nyeri) - Notice of Motion dated 18th November, 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/6/eng@2011-12-01

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