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Court of AppealDismissedNotice of Motion dated 20th June 2013 (arising from Nbi HCCC No. 975 of 2001 (OS))· [2014] KECA 620 (KLR)

Milka Wanjiru Mathu v Wamuita Kamau [2014] KECA 620 (KLR)

Court of Appeal of Kenya
9 April 2014
1,782 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to extend time to appeal because the applicant hid key facts and delayed unreasonably.

What this practically means

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Executive summary

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This was an application by notice of motion dated 20th June 2013, heard by G.B.M. Kariuki, JA, sitting as a single Judge in Chambers under rule 53(1) of the Court of Appeal Rules, seeking leave to file a Notice of Appeal out of time against a ruling of Waweru J delivered on 9th October 2012, together with extension of time for filing the Record of Appeal. The ruling had dismissed the applicant's 2006 application to set aside a judgment of Aluoch J of 28th July 2005 in an adverse possession suit (Nbi HCCC No. 975 of 2001 (OS)) in which the respondent claimed a small parcel of land, Githunguri/Gathiga/T.370, allegedly bought by her late husband from the applicant's late husband in about 1959. The applicant's counsel failed to disclose when the applicant's advocates discovered the delivery of the ruling - information the Court found vital to deciding whether she acted within a reasonable time. Spanning roughly seven months to the notice of appeal and nine months to the application, the delay was unexplained. The Court held that the burden lay on the applicant to show she was not indolent or guilty of laches, that candour is a sine qua non to the exercise of judicial discretion, and that the respondent's non-participation did not lessen that burden. The applicant also showed no arguable point. The application was dismissed with costs to the respondent on 9th April 2014.

Key legal issues

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01

Whether the applicant discharged the burden of proving she acted with dispatch in seeking extension of time

Holding

She did not; by failing to disclose the date of discovery of the ruling, she withheld facts vital to the application and the Court inferred the evidence would have been prejudicial to her

Reasoning

The ruling was delivered on 9.10.2012, the notice of appeal was filed 14.5.2013 and the application 5.7.2013, but the applicant never disclosed when her advocates discovered delivery of the ruling. Those dates were vital to assess reasonable time. The burden rested on the applicant; the only inference from suppression was prejudice to her case, amounting to laches.

p. 3
02

Whether candour and full disclosure are prerequisites to the exercise of the Court's discretion

Holding

Yes; a party who keeps material facts from the Court does not deserve its assistance, irrespective of whether the respondent opposes

Reasoning

The Court held that the whole object of judicial discretion is to do justice. Where an application turns on facts within the applicant's exclusive knowledge, failure to place them before the Court justifies refusal of the discretionary relief, and the respondent's silence does not lower the applicant's burden.

p. 3
03

Whether the intended appeal disclosed an arguable point

Holding

Apart from asserting merit, the applicant showed no arguable point; the claim below was for adverse possession and the respondent had been on the land since about 1959

Reasoning

The intended memorandum of appeal faulted the High Court for not finding the applicant entitled to defend the suit. The Court noted the underlying judgment followed an inter partes hearing at which the applicant failed to attend her defence hearing, and the respondent had occupied and developed the land since about 1959, with title registered to her in 2006.

p. 3

Legal principles established

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  • An applicant for extension of time bears the burden of showing she acted with dispatch and came to Court within a reasonable time after discovering the decision; withholding vital facts from the Court disqualifies her from the exercise of its discretion.
  • The non-attendance or non-participation of a respondent does not lessen the applicant's burden of proof on an application for extension of time.

Court orders

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  1. 1.The application dated 20th June 2013 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 53(1)
On appeal from
High Court of Kenya at Nairobi
HCCC No. 975 of 2001 (OS)
Jurisdiction invoked
Rule 53(1) of the Court of Appeal Rules - single Judge sitting in Chambers, extension of time application

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, "Milka Wanjiru Mathu v Wamuita Kamau [2014] KECA 620 (KLR)", Case Analysis (2014). Notice of Motion dated 20th June 2013 (arising from Nbi HCCC No. 975 of 2001 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/620/eng@2014-04-09

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