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Court of AppealPartially AllowedNotice of Motion dated 24th April 2015 (Court of Appeal, Eldoret)· [2015] KECA 279 (KLR)

Joseph Chepkoech Chemor v Kimaiyo Chemor & another [2015] KECA 279 (KLR)

Court of Appeal of Kenya
29 October 2015
AMA.K. Murgor
1,076 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 extended time to file an appeal record because delays in getting court proceedings were not the appellant's fault.

What this practically means

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Executive summary

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This was a single-judge application under Rule 4 of the Court of Appeal Rules 2010 seeking extension of time to file a Notice of Appeal and record of appeal against a ruling of Munyao Sila J delivered at Eldoret on 25th September 2014 in E & LC No. 499 of 2012. The underlying dispute concerned land parcel Moiben/Moiben Block 9 (Barsombe)/319 belonging to the late Chemor Chesigary Koibelel; the High Court found that the applicant had intermeddled with the estate by transferring the land to himself and charging it to AFC, and ordered cancellation of his title and registration in favour of the respondents as administrators. The applicant sought extension of time and a stay of execution. At the hearing, the parties consented to withdrawal of the stay prayer, it not being a matter for a single judge under Rule 4. The respondents opposed the application as an afterthought, citing lack of diligence over the six months since judgment. Applying Mwangi v Kenya Airways Ltd [2003] KLR 48, the court held that the Rule 4 discretion is unfettered but must be exercised judicially. Finding that the Notice of Appeal had been filed and served within the stipulated period and was therefore deemed properly filed, and that the delay in supplying certified proceedings was not entirely attributable to the applicant, the court directed that the record of appeal be filed within 30 days and made no orders as to costs. The application was thus partially allowed.

Key legal issues

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01

Extension of time to file and serve the record of appeal under Rule 4

Holding

The Notice of Appeal having been filed and served within the stipulated period, it was deemed properly filed; despite some delay, the applicant could not be held entirely responsible because of the pending request for certified proceedings, and the record of appeal was to be filed within 30 days

Reasoning

The court applied the Mwangi v Kenya Airways test, noting the discretion under Rule 4 is unfettered but must be exercised judicially. The applicant filed and served the Notice of Appeal in time and promptly requested certified proceedings; the delay in supply of proceedings was not entirely attributable to him. Balancing the factors, the court extended time by directing filing of the record within 30 days rather than dismissing the application.

p. 3

Legal principles established

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  • Rule 4 confers an unfettered discretion on a single judge, exercisable judicially, to consider any relevant factor beyond the listed factors in extension-of-time applications
  • Under Rule 82, time for filing and serving the record of appeal stops running once a request for certified proceedings is made to the Deputy Registrar and served on the respondents

Court orders

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  1. 1.Withdrawal of prayer 2 (stay of execution) by consent
  2. 2.The record of appeal be filed within the next 30 days from the date of the ruling
  3. 3.No orders as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 82

Cases cited (1)

  • Mwangi v Kenya Airways Ltd
    [2003] KLR 48
On appeal from
High Court of Kenya
Eldoret E & LC No. 499 of 2012
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules 2010

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 Chepkoech Chemor v Kimaiyo Chemor & another [2015] KECA 279 (KLR)", Case Analysis (2015). Notice of Motion dated 24th April 2015 (Court of Appeal, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/279/eng@2015-10-29

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