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Court of AppealAllowed· [2015] KECA 795 (KLR)

Dominic Musei Ikombo & 2 others v Kyule Makau [2015] KECA 795 (KLR)

Court of Appeal of Kenya
17 April 2015
1,457 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a late appeal filing, ruling that a short, explained delay and an arguable case justify more time to appeal.

What this practically means

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Executive summary

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This is a single-judge Court of Appeal ruling on an application under rule 4 of the Court of Appeal Rules seeking an extension of time to file and serve a notice of appeal against a judgment of Odunga, J. delivered on 16th September 2014, which had dismissed the applicants' judicial review application for orders of certiorari and prohibition directed at a decision of the Minister made through the District Commissioner, Kathiani, in a land dispute. The notice of appeal was filed six days late. Counsel for the applicant explained that the judgment was delivered in the absence of both counsel and that a clerk instructed to peruse the Nairobi court file could not retrieve it in good time. Applying the established factors - length of delay, explanation, prejudice, and arguability of the intended appeal - the court held that the six-day delay was not inordinate and that the intended appeal was arguable. The underlying dispute concerned land registered in the names of deceased persons, an appeal to the Minister heard after their deaths without appointed legal representatives, and an award of land to deceased persons, which the High Court had held to be an illegal order. The court found at least one bona fide arguable point sufficient and no significant prejudice to the respondent. The application was allowed: the notice of appeal was to be filed and served within fourteen days and the record of appeal within thirty days, failing which the leave would lapse and the application stand dismissed. Costs were awarded to the respondent.

Key legal issues

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01

Length and explanation of the delay

Holding

A six-day delay, occurring partly because judgment was delivered in Nairobi while counsel's office was in Machakos and certified copies of the decision were not promptly released, was not inordinate and the applicant could not be faulted.

Reasoning

The court accepted that files are often returned to the registry for administrative processes before certified copies are released, and occasional certification delays occur. Without excusing counsel's non-attendance at delivery of judgment, the court declined to blame the applicant for the short delay.

p. 3
02

Arguability of the intended appeal

Holding

The intended appeal was not frivolous; grounds concerning the limitation period, the interpretation of the Minister's award, and the District Commissioner's hearing of substituted parties who were not legal representatives of deceased persons raised arguable issues.

Reasoning

The court noted that the disputed land was registered in the names of deceased persons, that the appeal to the Minister was not heard during their lifetimes, and that no legal representatives were formally appointed, yet the District Commissioner purported to hear substituted persons and the Minister awarded land to deceased persons. Even a single bona fide point suffices.

p. 3
03

Prejudice to the respondent

Holding

Granting the extension would not cause the respondent much prejudice since the respondent would still have the opportunity to defend the appeal.

Reasoning

The court balanced the delay and arguability factors against prejudice to the other side, concluding that the respondent retained a full opportunity to contest the appeal once filed.

p. 3

Legal principles established

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  • In an application for extension of time under rule 4 the Court exercises an unfettered discretion which must be exercised judiciously, considering the length of the delay, the explanation for the delay, prejudice to the other party and the merits of the intended appeal.
  • Even a single bona fide arguable point suffices to establish an arguable appeal; an arguable appeal need not be one that must succeed, only one that can reasonably sustain a legal argument.

Court orders

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  1. 1.Extension of time granted to file and serve the notice of appeal
  2. 2.Extension of time granted to file and serve the record of appeal
  3. 3.Notice of appeal to be filed and served within fourteen (14) days from the date of delivery of the ruling
  4. 4.Record of appeal to be filed and served within thirty (30) days from the date of delivery of the ruling, failing which the leave granted shall automatically lapse and the application shall stand dismissed
  5. 5.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (3)

  • SHAH v SOUTHERN CREDIT BANKING CORPORATION LTD
    [2008] KLR 173
  • DAMJI PRAGJI MANDARIA v SARA LEE HOUSEHOLD & BODY CARE (K) LTD
    Civil Application No. 345 of 2004
  • JOSEPH GITAIHI & ANOTHER v PIONEER HOLDINGS (A) LTD & 2 OTHERS
    Civil Application No. 124 of 2008
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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, "Dominic Musei Ikombo & 2 others v Kyule Makau [2015] KECA 795 (KLR)", Case Analysis (2015). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/795/eng@2015-04-17

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