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Court of AppealDismissedNot stated in the judgment· [2016] KECA 107 (KLR)

George N. Mbundi & another v Philip Maoka Mogaka & another [2016] KECA 107 (KLR)

Court of Appeal of Kenya
24 November 2016
DMD. K. Musinga
1,090 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse a nearly five-year delay in filing an appeal, warning that settlement talks never justify missing legal deadlines.

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 seeking extension of time to file and serve the record of appeal out of time. The applicants, who had been objectors in succession proceedings concerning the estate of the late Hellen Nyanduko Maoga and the suit land Kwanza/Namanjalala/Goseta/103, lost in the High Court on 29th July 2011 and filed a timely notice of appeal on 5th August 2011. Proceedings were supplied on 19th October 2011, so the record was due by 18th December 2011, but nearly five years passed without the appeal being filed. The applicants blamed pending settlement negotiations and the death of the petitioner on 31st May 2012, with substitution only occurring later. The respondent denied any negotiations and argued the delay was inordinate and unexplained, the appeal unarguable, and that she would suffer prejudice since the applicants occupied the entire suit land. Applying the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the Court held the delay inordinate and unexplained: negotiations cannot bar compliance with statutory timelines and none were proved, and no explanation existed for the period after substitution. Absent a draft memorandum of appeal, the Court could not assess arguability, noting such a draft is important though not mandatory. Although the applicants' exclusive occupation would not have amounted to unbearable prejudice, they had failed the first two, most important, considerations. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the delay of nearly five years in filing the record of appeal was excusable

Holding

The delay was inordinate and unexplained; alleged settlement negotiations were denied and unproved, and could not justify non-compliance with statutory timelines in any event.

Reasoning

Proceedings were supplied on 19th October 2011 and the appeal was due by 18th December 2011. The petitioner died on 31st May 2012, almost eight months after supply, so there was no reason the appeal could not have been filed during his lifetime. The respondent denied negotiations and the applicants proved none. There was also no explanation for inaction between substitution on 17th February 2015 and the application on 23rd February 2016.

p. 3
02

Whether the intended appeal was arguable in the absence of a draft memorandum of appeal

Holding

Without a draft memorandum of appeal, the court could not form a prima facie opinion on arguability; a draft memorandum is important though not mandatory, and its absence should be cured by setting out grounds in the affidavit.

Reasoning

The court reiterated the well-settled Mutiso principles and noted that the applicants failed the first two, most important, considerations. Even had the other principles been satisfied, occupation of the land by the applicants would not have amounted to unbearable prejudice, but this could not rescue the application.

p. 3

Legal principles established

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  • In an extension-of-time application, the court considers the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent; the decision is discretionary.
  • Pendency of settlement negotiations does not excuse non-compliance with statutory timelines for filing an appeal.
  • An applicant for extension of time should attach a draft memorandum of appeal or, failing that, set out the intended grounds clearly in the supporting affidavit.

Court orders

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  1. 1.The application for extension of time to file and serve the record of appeal out of time is dismissed

Authorities

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Legislation

  • Court of Appeal Rulesrule 4

Cases cited (1)

  • LEO SILA MUTISO V ROSE HELLEN WANGARI MWANGI
    Civil Application No. Nai. 255 of 1997
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time to file and serve the record of appeal)

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, "George N. Mbundi & another v Philip Maoka Mogaka & another [2016] KECA 107 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/107/eng@2016-11-24

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