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)
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
#Key legal issues
#Parameters of discretion under rule 4 on extension of time
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.
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.
Whether a delay of about two months is inordinate
A delay of less than two months is not inordinate, by comparison with prior decisions where 20 months and 2 years' delay were disqualifying.
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.
Explanation for the delay
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.
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.
Arguability of the intended appeal
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.
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.
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.Prayer 1 of the application allowed
- 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.Respondents to be compensated by way of costs
- 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.