Barnabas Mungo Longit v Stanley Tanui [2016] KECA 110 (KLR)
The bottom line
#The Court of Appeal refused to extend time for a landowner's appeal because he waited 90 days without explaining the delay.
What this practically means
#Executive summary
#Key legal issues
#Principles governing extension of time
The court applied the settled Mutiso principles: length of delay, reasons for delay, arguability of the appeal, and prejudice to the respondent.
The court restated the four discretionary factors from Leo Sila Mutiso. It found the 90-day delay between the striking out of the first notice of appeal (16 February 2016) and the present application (16 May 2016) inordinate and unexplained, since the affidavit only explained the earlier delay in filing the notice of appeal.
Arguability of the intended appeal
The applicant failed to demonstrate that the intended appeal is arguable; a draft memorandum of appeal is important though not mandatory.
The respondent pointed out there was no draft memorandum of appeal. The court held that although attaching a draft is not mandatory, the applicant should in the absence of one clearly set out in the supporting affidavit the grounds intended to be raised on appeal. The applicant did neither, so arguability was not established.
Defective supporting affidavit
The undated, thumb-printed affidavit was defective under section 5 of the Oaths and Statutory Declarations Act, but the court overlooked the irregularity under Order 19 rule 7 of the Civil Procedure Rules and determined the application on its merits.
The affidavit lacked a date as required by section 5 of the Oaths and Statutory Declarations Act, and there was dispute over the thumb print given the applicant was literate. Counsel explained a sprained hand. Nonetheless, exercising its discretion under Order 19 rule 7, the court excused the defects and proceeded to the merits.
Legal principles established
#- The decision whether to extend time for appeal is discretionary, guided by the length of the delay, the reasons for it, the chances of the appeal succeeding, and the prejudice to the respondent
- Where no draft memorandum of appeal is attached to an extension-of-time application, the applicant must set out the intended grounds clearly in the supporting affidavit
- Curable defects in a supporting affidavit may be overlooked under Order 19 rule 7 of the Civil Procedure Rules so that the application is determined on its merits
Court orders
#- 1.The application for extension of time to file an appeal out of time is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Environment and Land Court, Kitale
- Kitale ELC Case No. 16 of 2012
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time to file an appeal out of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barnabas Mungo Longit v Stanley Tanui [2016] KECA 110 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/110/eng@2016-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.