Peter Kimandiu v Land Adjudication Officer & 5 others [2015] KECA 414 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the delay of about two months after receipt of typed proceedings was inordinate and excusable
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.
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.
Whether the intended appeal is arguable
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.
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.
Application of the overriding objective to the extension application
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.
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.
Prejudice to the respondents if extension is granted
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.
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.
Legal principles established
#- 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
#- 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.The applicant to file and serve the record of appeal within 30 days of the ruling
- 3.The applicant to pay costs of the application to the respondents, to be agreed or assessed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.