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Court of AppealDismissedApplication for extension of time arising from H.C.C.C. No. 283 of 2010 (Nakuru)· [2014] KECA 724 (KLR)

Amina Hassan Saitun & 372 (Suing as Lekiji Community) v Nigel Welby & another [2014] KECA 724 (KLR)

Court of Appeal of Kenya
14 March 2014
2,122 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused 373 land claimants more time to appeal because they delayed unreasonably and showed their case had no real chance of success.

What this practically means

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Executive summary

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This was an application under rule 4 of the Court of Appeal Rules by 373 applicants suing as Lekiji Community, seeking extension of time to lodge a notice of appeal against a ruling of the High Court (Emukule, J.) delivered on 11 March 2011 in H.C.C.C. No. 283 of 2010, which had struck out their application on res judicata grounds. The notice of appeal was lodged 90 days late, and the application for extension was filed over two years later, after the applicants' constitutional petition No. 16 of 2011 had been dismissed. The applicants attributed the delay to lack of funds and to their resistance of eviction attempts. Kariuki, JA restated the settled principles governing rule 4: the discretion is unfettered but exercised judicially, weighing the length of and reasons for the delay, the arguability of the intended appeal, prejudice to the other party, public importance and the interests of justice, including access to justice under Article 48 of the Constitution. The court rejected the lack-of-funds explanation, noting the applicants had resources to pursue the constitutional petition and could have raised fees among 373 applicants, and that they had not promptly sought extension after filing the late notice. The intended appeal, founded on adverse possession, was not shown to be prima facie arguable, and the prejudice to the respondents, who had not enjoyed their land purchased in 1995 for nearly 19 years amid a surfeit of litigation, was not redressable by costs. The application was dismissed with costs.

Key legal issues

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01

Whether the delay of 90 days in lodging the notice of appeal and over two years in applying for extension was excusable

Holding

The delay was inordinate and unexplained; lack of funds was not accepted since the applicants were able to file constitutional petition No. 16 of 2011 and did not seek extension promptly after filing the late notice.

Reasoning

The applicants filed their notice of appeal 90 days late and then waited over two years after the petition's dismissal to seek extension. The claim of indigence was contradicted by their ability to pursue the constitutional petition, and there was no allegation that the petition was pursued through Kituo Cha Sheria or pro bono services. With 373 applicants, fees could have been raised. The court held that indolence cannot attract the benefit of rule 4.

p. 3
02

Whether the intended appeal was arguable

Holding

The applicants failed to demonstrate on a prima facie basis that the intended appeal, predicated on adverse possession, was arguable.

Reasoning

The applicants had failed to prove adverse possession against the title holders who sold to the respondents, and adverse possession had not run against the respondents since they acquired title in 1995. The court could not see, prima facie, the basis for an arguable case of adverse possession. The ownership question had already been litigated almost ad nauseam.

p. 3
03

Whether prejudice to the respondents would be redressable by costs

Holding

The prejudice to the respondents, who had been unable to enjoy their property for close to 19 years amid a surfeit of litigation, would not be adequately redressed by an award of costs.

Reasoning

The respondents purchased the land in 1995 and obtained an eviction order, yet the applicants remained on the land for nearly two decades. Given the extensive prior litigation over ownership, extending time would perpetuate injustice to respondents who were dragged to court; the scales of justice had to be balanced between the parties.

p. 4

Legal principles established

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  • The discretion under rule 4 to extend time is unfettered but must be exercised judicially, weighing the length of and reasons for delay, arguability of the appeal, prejudice, public importance and the interest of justice including access to justice under Article 48.
  • A litigant who is indolent or lacks diligence cannot benefit from rule 4; the rule exists to assist parties who for no fault of their own fail to meet timelines.
  • Only unreasonable and culpable delay disentitles an applicant to extension of time, and whether delay is unreasonable depends on the circumstances of each case.

Court orders

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  1. 1.The application for extension of time is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75
  • Constitution of KenyaArticle 48

Cases cited (4)

  • Wasike vs. Khisa & Another
    [2004] 1 KLR 197
  • Gachau & Another vs. Pioneer Holdings (A) Limited & 2 Others
    [2008] KLR 315
  • Paul Wanjohi Mathenge vs. Duncan Gichane Mathenge
    [2013] eKLR
  • Gatu v. Muriuki
    [1986] KLR 211
On appeal from
High Court of Kenya (Nakuru)
H.C.C.C. No. 283 of 2010
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application for extension of time)

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, "Amina Hassan Saitun & 372 (Suing as Lekiji Community) v Nigel Welby & another [2014] KECA 724 (KLR)", Case Analysis (2014). Application for extension of time arising from H.C.C.C. No. 283 of 2010 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/724/eng@2014-03-14

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