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Court of AppealPartially AllowedMeru High Court Misc. (JR) Application No. 22 of 2010 (appeal therefrom)· [2015] KECA 414 (KLR)

Peter Kimandiu v Land Adjudication Officer & 5 others [2015] KECA 414 (KLR)

Court of Appeal of Kenya
24 June 2015
3,499 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 allowed a delayed land appeal to proceed because the applicant explained his two-month delay, showing courts will excuse honest, documented delay.

What this practically means

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Executive summary

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This is a single-judge Court of Appeal (Nyeri) ruling by Nambuye JA on a Notice of Motion under sections 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules 2010, seeking extension of time to file a Memorandum and Record of Appeal against a High Court judgment (Njoroge J, Meru, 21 November 2014) in a judicial review matter concerning land adjudication. The applicant had promptly lodged a Notice of Appeal on 4 December 2014 and requested typed proceedings on 16 December 2014, but proceedings were only supplied on 16 February 2015, partly because of the court's delay. He then took two further months, explained by financial constraints arising from his son's sickness and death, evidenced by an unchallenged burial permit. The 2nd, 4th and 5th respondents opposed, citing unexplained and inordinate delay, absence of a certificate of delay and decree, and prejudice to parties who had developed the land. Applying the principles in Aviation Cargo Support Ltd v St. Mark Freight Services Ltd and City Chemist v Oriental Bank, the court held the delay was not inordinate, was plausibly and excusably explained, that the intended appeal on the application of the Land Adjudication Act (Cap 283) was arguable, and that no serious prejudice would result. Invoking the overriding objective and the interests of justice under Article 48, the court allowed the application on conditions: record of appeal to be filed and served within 30 days, and costs of the application to the respondents, to be agreed or assessed. The ruling is interlocutory; the underlying High Court decision was not disturbed.

Key legal issues

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01

Whether the delay of about two months after receipt of typed proceedings was inordinate and excusable

Holding

The delay was not inordinate because the applicant acted promptly in lodging the Notice of Appeal and requesting proceedings, the proceedings were supplied late by the court, and the two-month delay thereafter was plausibly explained by financial constraints arising from his son's sickness and death, which was unchallenged.

Reasoning

The court found the applicant diligent: Notice of Appeal filed 4 December 2014 and proceedings requested 16 December 2014 and served. Proceedings were only supplied on 16 February 2015, so part of the delay was attributable to the court. The subsequent two months were explained by sickness and death of the applicant's son, evidenced by a burial permit and unchallenged. A plausibly explained two-month delay cannot be inordinate, distinguishing the respondents' authorities.

p. 5
02

Whether the intended appeal is arguable

Holding

The draft memorandum of appeal raised issues on the application of the Land Adjudication Act (Cap 283) by the trial judge, which are arguable; arguability does not require that the argument must succeed.

Reasoning

The court perused the draft memorandum and found it concerned the proper application of provisions of the Land Adjudication Act to the facts, a question of law that is arguable. Applying the settled meaning of 'arguable', the court held the test is met where the argument justifies calling on the opposite party to respond, not where success is assured.

p. 5
03

Application of the overriding objective to the extension application

Holding

This is a proper case to apply the overriding objective because there was no inordinate delay, a plausible explanation was given, and allowing the appeal would not encourage flouting the Court's Rules.

Reasoning

Balancing the factors, the court found that exercising discretion in the applicant's favour would facilitate reassessment on appeal of issues in controversy between the kin-related parties, and would not amount to aiding indolence or condoning flouting of the Rules, distinguishing the scenario in the authorities relied on by the respondents.

p. 6
04

Prejudice to the respondents if extension is granted

Holding

No serious prejudice was shown: the 1st and 3rd respondents did not oppose the application, and the 2nd, 4th and 5th respondents, though desiring to enjoy the fruits of the judgment, faced no eviction threat.

Reasoning

The court noted the kinship between the parties, the respondents' development of the land, and their desire to reap the fruits of the judgment, but found this was not to be underestimated yet did not amount to the prejudice that would justify withholding the extension.

p. 5

Legal principles established

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  • The discretion under Rule 4 to extend time is unfettered but must be exercised judicially, considering the length of and reason for the delay, arguability of the appeal, prejudice to the respondent, and the interests of justice.
  • An 'arguable' appeal is not one that must succeed, but one that on its face justifies calling on the opposite party to respond.
  • The overriding objective does not facilitate extension of time where the delay is inordinate or unexplained; but where the delay is plausibly explained and not inordinate, the principle may be applied to enable the appeal be heard on merit.

Court orders

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  1. 1.Extension of time granted to file the Memorandum and Record of Appeal against the judgment of Njoroge J. delivered on 21 November 2014
  2. 2.The applicant to file and serve the record of appeal within 30 days of the ruling
  3. 3.The applicant to pay costs of the application to the respondents, to be agreed or assessed

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal Rules 2010Rule 4
  • Constitution of KenyaArticle 105(1)
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 48
  • Land Adjudication ActCap 283 (sections applied by the trial judge)

Cases cited (9)

  • Julius Kamau Kithaka versus Waruguru Kithaka Nyaga and 2 others
    [2013] eKLR
  • Paul Wanjohi versus Dancan Gichane Mathenge
    [2013] eKLR
  • Joseph Gachuhi Muthanji versus Mary Njuguna
    [2014] eKLR
  • Peter Gatahi Kamaithia versus Secretary Public Service Commission and 2 others
    [2014] eKLR
  • Dominic Musei Kombo and 2 others versus Kyule Makau
    [2015] eKLR
  • George Mwenda Muthuri versus Mama Day Nursery and Primary School Nyeri
    CA No. Nyr No 4 of 2014 (UR2/14)
  • Aviation Cargo Support Limited Versus St. Mark Freight Services Limited
    [2014] eKLR
  • Christopher Mugo Kimotho versus the Hon. Attorney General
    [2009] eKLR
  • City Chemist (Nbi) & Another V. Oriental Bank Limited
    Civil Application No. Nairobi 302 of 2008 (UR 199/2008)
On appeal from
High Court of Kenya at Meru
Meru High Court Misc. Application No. 22 of 2010
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9), Rule 4 of the Court of Appeal Rules 2010, and Articles 105(1), 48 and 159 of the Constitution of Kenya

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, "Peter Kimandiu v Land Adjudication Officer & 5 others [2015] KECA 414 (KLR)", Case Analysis (2015). Meru High Court Misc. (JR) Application No. 22 of 2010 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/414/eng@2015-06-24

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