Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedMisc. Civil Application No. Nai. 143 of 2014· [2014] KECA 277 (KLR)

Jamaldin Yahya, Barnaba Agar Nyandiero, Samuel Ketai, Lucy Muthoni t/a Lucy Hotel, Rebecca Sambeki t/a Sambeki Pub & Jairus Saw t/a Wote Butchery) v Nancy Bomett (suing on behalf of a Jamhuri East Residents Association in her capacity as the Chairlady thereof), John Evans Arek (suing in his capacity as the Secretary thereof) & Fred Kinuthia (suing in his capacity as the Treasurer thereof (Miscellaneous Civil Application 143 of 2014) (Civ) [2014] KECA 277 (KLR)

Court of Appeal of Kenya
7 November 2014
2,482 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal allowed a two-month-late appeal because the delay was short and the appeal raised real issues, but the underlying High Court orders still stand.

What this practically means

#

Executive summary

#
This is a single-judge (in chambers) ruling of the Court of Appeal at Nairobi by Nambuye JA on a notice of motion under rule 4 of the Court of Appeal Rules seeking extension of time to file and serve a notice of appeal out of time. The intended appeal was against the ruling of Gitumbi J delivered on 2 May 2014 in Nairobi HCCC ELC No. 289 of 2012, in which the High Court granted both a temporary and a mandatory injunction in favour of the respondents, committee officials of the Jamhuri East Residents Association, restraining the applicants from occupying suit parcels and compelling them to vacate, but limited to parcels whose titles were exhibited. The applicants missed the 14-day window under rule 75(2), filing the present application 51 days after the ruling. The court restated the settled factors for extension of time from Leo Sila Mutiso and Githiaka v Nduriri. It accepted that the ruling may have been delivered without notice to the applicants, but found the unrebuted affidavit of service of the extracted order on 29 May 2014 alerted them; nonetheless, it held the delay of under two months was not inordinate, the intended grounds (mandatory injunction at interlocutory stage, fraud/authenticity of titles, breach of natural justice) were arguable, and no prejudice was shown since extension does not operate as a stay. Prayer 2 (stay) had been abandoned as premature. Prayer 1 was allowed: the applicants were given 14 days to file and serve the notice of appeal out of time, with the respondents compensated by way of costs. The decision below was not disturbed; the door to a substantive appeal was merely opened.

Key legal issues

#
01

Parameters of discretion under rule 4 on extension of time

Holding

The discretion is guided by the length of and reasons for the delay, arguability of the intended appeal, public importance and the interests of justice, drawing on Leo Sila Mutiso and Githiaka v Nduriri.

Reasoning

The judge invoked rule 4, read with rule 1(2) inherent power, and restated the settled factors from Leo Sila Mutiso v Rose Hellen Wangari Mwangi and Githiaka v Nduriri, then applied them seriatim to the delay, explanation, arguability and prejudice before allowing extension.

p. 3
02

Whether a delay of about two months is inordinate

Holding

A delay of less than two months is not inordinate, by comparison with prior decisions where 20 months and 2 years' delay were disqualifying.

Reasoning

Relying on George Mwenda Muthuri v Mama Day and Nursery School Ltd and Moses Odero Owuor v Andronico Otieno Anindo, where delays of 20 months and 2 years led to refusal, the judge held that a delay of under two months fell far short of inordinate delay.

p. 4
03

Explanation for the delay

Holding

Although delivery of the ruling without notice was plausible, the applicants gave no sufficient reason for waiting 26 days after being served with the extracted order before moving to court.

Reasoning

The court accepted the affidavit of service showing the applicants were served with the extracted order on 29 May 2014 with notice of penal consequences, and noted there was unrebuted evidence and silence explaining the further 26-day delay, yet still found other factors favoured extension.

p. 4
04

Arguability of the intended appeal

Holding

The intended grounds - issuance of a mandatory injunction at interlocutory stage, fraud and authenticity of titles, and breach of natural justice - are arguable irrespective of ultimate success.

Reasoning

The court reiterated that arguability is only a possible consideration and that an arguable appeal need not succeed; the applicants' constitutional right of appeal warranted leave since the points raised were genuinely arguable.

p. 4

Legal principles established

#
  • In deciding whether to extend time for appealing, the court considers the length of the delay, the reasons for the delay, the chances of the appeal succeeding and the degree of prejudice to the respondent.
  • An arguable appeal need not be one that must succeed; it is enough that there is good cause shown such that the respondent should be called upon to respond.
  • Granting leave to appeal out of time does not automatically operate as a stay of execution.

Court orders

#
  1. 1.Prayer 1 of the application allowed
  2. 2.The applicants granted 14 days from the date of the reading of the ruling to file and serve their notice of appeal out of time
  3. 3.Respondents to be compensated by way of costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 40 rule 1(1)(a)
  • Civil Procedure RulesOrder 40 rule 2(1)
  • Civil Procedure RulesOrder 40 rule 2(4)
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure RulesOrder 5 rule 17
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(c)
  • Civil Procedure ActSection 63(e)
  • Court of Appeal RulesRule 75(2)
  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 42

Cases cited (4)

  • Leo Sila Mutiso versus Rose Hellen Wangari Mwangi
    Civil Application No. Nai 255 of 1997 (UR)
  • Githiaka versus Nduriri
    [2004] 2 KLR 67
  • George Mwenda Muthuri versus Mama Day and Nursery School Limited
    [2014] eKLR
  • Moses Odero Owuor and 2 others versus Andronico Otieno Anindo
    (2013) eKLR
On appeal from
High Court of Kenya at Nairobi
HCCC ELC No. 289 of 2012
Jurisdiction invoked
Rules 1(2), 4 and 42 of the Court of Appeal Rules (inherent power and extension of time)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jamaldin Yahya, Barnaba Agar Nyandiero, Samuel Ketai, Lucy Muthoni t/a Lucy Hotel, Rebecca Sambeki t/a Sambeki Pub & Jairus Saw t/a Wote Butchery) v Nancy Bomett (suing on behalf of a Jamhuri East Residents Association in her capacity as the Chairlady thereof), John Evans Arek (suing in his capacity as the Secretary thereof) & Fred Kinuthia (suing in his capacity as the Treasurer thereof (Miscellaneous Civil Application 143 of 2014)  (Civ) [2014] KECA 277 (KLR)", Case Analysis (2014). Misc. Civil Application No. Nai. 143 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/277/eng@2014-11-07

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