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Court of AppealDismissedCivil Application (Eldoret) arising from Eldoret E & L Case No. 931 of 2012· [2015] KECA 552 (KLR)

Wellington Lusweti Barasa & 74 others v Lands Limited & another [2015] KECA 552 (KLR)

Court of Appeal of Kenya
24 June 2015
1,570 words in judgment
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The bottom line

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The Court of Appeal refused 75 land occupants more time to appeal their eviction, ruling a seven-month unexplained delay was inexcusable and the case had already been overtaken by events.

What this practically means

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Executive summary

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This was a single-judge ruling of the Court of Appeal at Eldoret (Musinga, JA) on an application dated 26th May 2015 brought under rule 4 of the Court of Appeal Rules and sections 3, 3A and 3B of the Appellate Jurisdiction Act. The 75 applicants, who had lost in the High Court before Munyao Sila, J. on 30th October 2014 in a claim seeking registration as proprietors of land reference number 8319 Moiben by adverse possession, sought extension of time to lodge and serve a notice and record of appeal, plus an order for status quo. Although a defective notice of appeal was filed on 4th November 2014, it was never served on the respondents nor endorsed by the deputy registrar, and the letter bespeaking proceedings was not copied to the respondents, disqualifying reliance on the proviso to rule 82. Applying the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the judge found the seven-month delay inordinate and unexplained. He also found the intended appeal not arguable, noting the court had already expressed grave doubt in a prior stay ruling that occupation with the owner's consent cannot ground adverse possession. The police evidence confirmed the applicants had been evicted on 28th May 2015, rendering the application overtaken by events. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the delay of over seven months in filing the record of appeal was excusable

Holding

The delay was inordinate and unexplained; the notice of appeal was not served on the respondents, the letter bespeaking proceedings was not copied to them, and no certificate of delay was filed, so the applicants could not invoke the proviso to rule 82.

Reasoning

The court noted that the notice of appeal, though defective, was filed within time on 4th November 2014 but was never served, and no reasons for that failure were given. The applicants could not rely on the proviso to rule 82 because their letter bespeaking proceedings was not copied to the respondents. With no certificate of delay and no sufficient explanation for the seven-month delay, the discretion could not be exercised in their favour.

p. 3
02

Whether the intended appeal was arguable

Holding

The intended appeal was not shown to be arguable; the court had already expressed grave doubt about arguability in dismissing an earlier stay application, and the applicants advanced nothing to show that view was erroneous.

Reasoning

In a prior stay-of-execution application, the court had stated that the applicants were employees or children of employees occupying the land with permission, so time could not run for adverse possession. The applicants neither advanced argument nor cited authority to persuade the court that this position was wrong in law, so the arguability limb of the extension-of-time test failed.

p. 4
03

Whether the application had been overtaken by events

Holding

The application was overtaken by events because the applicants had already been evicted from the suit land pursuant to the eviction order executed on 28th May 2015, as confirmed by police documentation.

Reasoning

The second respondent produced a letter from the OCPD Eldoret East confirming the eviction was carried out on 28th May 2015 with routine surveillance ongoing and no squatters remaining on the land. Although the applicants disputed full eviction, the documentary evidence showed the decree had been executed, rendering the sought relief and status quo order academic.

p. 4

Legal principles established

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  • The decision whether or not to extend time for appealing is discretionary, and the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
  • The court's discretion on extension of time must be exercised reasonably, considering the applicant's conduct and whether a belated grant would prejudice the respondent or take away accrued vested rights.
  • For purposes of an adverse possession claim, time does not run in favour of a person in occupation of land with the consent of the owner.

Court orders

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  1. 1.The application is dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 82 (proviso)
  • Appellate Jurisdiction Actsections 3, 3A and 3B

Cases cited (2)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Appeal No. Nai 255 of 1997
  • Pothiwalla v Kidogo Basi Housing Co-operative Society Limited & 31 Others
    [2003] eKLR 733
On appeal from
High Court of Kenya, Eldoret
Eldoret E & L Case No. 931 of 2012
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules and sections 3, 3A and 3B of the Appellate Jurisdiction Act

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, "Wellington Lusweti Barasa & 74 others v Lands Limited & another [2015] KECA 552 (KLR)", Case Analysis (2015). Civil Application (Eldoret) arising from Eldoret E & L Case No. 931 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/552/eng@2015-06-24

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