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Court of AppealPartially AllowedCourt of Appeal Rules, 2010 – Motion dated 30th May 2016· [2016] KECA 64 (KLR)

Silas Yego & another v Moses Muturi & 6 others [2016] KECA 64 (KLR)

Court of Appeal of Kenya
25 November 2016
PKP. O. Kiage
1,579 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 late filing of an appeal because the lawyer was never served with notice of the ruling, but refused to rubber-stamp a defective, unsigned notice of appeal.

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 leave to file a notice of appeal out of time against a ruling of the Environment and Land Court at Nairobi (L. Gacheru, J) delivered on 29th April 2016. The applicants' counsel deponed that the learned judge had on 25th November 2015 directed that the ruling be delivered on notice, but no notice of the delivery date was served on his firm; he learned of the ruling only on 23rd May 2016 upon enquiry at the registry, by which time the window for filing the notice had closed. The respondents, through a replying affidavit of Naftaly Kamau Gitau, produced a copy of the notice of delivery bearing a stamp of their advocates' firm but none of the applicants' advocates, and accused the applicants of inordinate and inexcusable delay. P. O. Kiage, JA restated the settled Rule 4 principles: the discretion is wide and unfettered but not capricious, exercised on considerations including the length and reason for delay, arguability of the appeal, prejudice to the respondent and compliance with time limits, none of which are exhaustive. Finding no proof of service on the applicants' advocates, the judge held the delay fully explained and not inordinate, describing the applicants as deserving relief ex debito justitiae. He noted, however, that the attached notice of appeal was undated, unsigned and unfiled, so it could not be deemed filed; instead the notice was to be filed and served within ten days. Costs were reserved to the intended appeal.

Key legal issues

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01

Whether the delay in filing the notice of appeal was satisfactorily explained

Holding

The delay was fully and satisfactorily explained because there was no proof of service of the notice of delivery of the ruling on the applicants' advocates

Reasoning

Although the respondents contended the notice was addressed to both firms, there was no received stamp on the applicants' advocates' copy. The court held there was a gap between what ought to have happened and what could be proven to have happened, found the applicants blameless, and concluded they moved with reasonable speed once aware of the ruling.

p. 3
02

The proper approach to the Rule 4 discretion

Holding

The discretion is wide and unfettered, exercisable on settled principles, with an exhaustive-free list of factors considered in the totality to do substantial justice

Reasoning

The court adopted the principles in Mohammed v Joseph Mugambi, themselves drawn from Mutiso v Mwangi and other decisions: period of delay, reason for delay, arguability, prejudice, public administration, compliance with time limits, resources and public importance, none limiting the judge's duty to do justice between the parties.

p. 3

Legal principles established

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  • A single judge's discretion under Rule 4 to extend time is wide and unfettered but must be exercised on settled principles, considering the totality of the case, not capriciously
  • Factors relevant to Rule 4 include the period and reason for delay, chances of the appeal succeeding, prejudice to the respondent, and compliance with time limits; the list is not exhaustive

Court orders

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  1. 1.The application is granted
  2. 2.The notice of appeal shall be filed and served within TEN (10) days of the date of the ruling
  3. 3.Costs shall be in the intended appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Court of Appeal Rules, 2010Rule 4

Cases cited (7)

  • CONSOLIDATED FINANCE BANK LIMITED vs. KAPURCHAND DEPAR SHAH
    Civil Application No. Nai. 256 of 2013
  • SARAH NJERI vs. JOHN KIMANI NJOROGE
    Civil Application No. 221 of 2008 (UR 140/2008)
  • MOHAMMED vs. JOSEPH MUGAMBI & 2 OTHERS
    [2003] eKLR
  • Mutiso v Mwangi
    Civil Application Nairobi 255 of 1997 (UR)
  • Mwangi v Kenya Airways Limited
    [2003] KLR 486
  • Major Joseph Mwereri Ingweta v Murika M'Ethare and Attorney General
    Civil Application Nairobi 8 of 2000 (UR)
  • Murai v Wainaina Number 4
    [1982] KLR 38
On appeal from
Environment and Land Court at Nairobi
null
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010 (single judge discretion to extend time)

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, "Silas Yego & another v Moses Muturi & 6 others [2016] KECA 64 (KLR)", Case Analysis (2016). Court of Appeal Rules, 2010 – Motion dated 30th May 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/64/eng@2016-11-25

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