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Court of AppealPartially AllowedCivil Application (extension of time motion dated 24th July, 2015, arising from Kericho High Court Civil Case No.64 of 2008)· [2016] KECA 226 (KLR)

Philip Kipyegon Lelei v Jonathan Kimutai Mibei [2016] KECA 226 (KLR)

Court of Appeal of Kenya
15 September 2016
1,700 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 gave a litigant 30 more days to file his appeal, confirming that delays can be excused when genuinely believing a judgment favoured you.

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 by H. M. Okwengu, JA, on a notice of motion dated 24th July, 2015 by Philip Kipyegon Lelei seeking extension of time to file a notice of appeal, memorandum of appeal and record of appeal against the judgment of Hon. L. N. Waithaka (J) delivered on 29th October, 2014 in Kericho HCC No.64 of 2009, together with an order of status quo. The applicant explained that the judgment pronounced in his presence entered judgment for him on his counterclaim, declaring that the respondent held 13 acres of the suit property in trust for him, and that he only discovered on being served with a notice of intended execution that the typed judgment in the file differed. The deputy registrar confirmed the typed judgment as the delivered one. The court declined the status quo prayer, holding that under Rule 53(2)(b) a single judge has no power to hear applications for stay of execution, injunction or stay of further proceedings. On extension of time, the court found the applicant's explanation reasonable: the respondent himself filed a notice of appeal and took steps to comply with the judgment as pronounced, including obtaining Land Control Board consent to sub-divide the 13 acres. The court found the intended appeal arguable on whether Section 3(3) of the Law of Contract Act and Land Control Board consent requirements apply to trusts, found no prejudice to the respondent, and greater prejudice to the applicant in occupation. Time was extended by 30 days, with costs in the appeal.

Key legal issues

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01

Jurisdiction of a single judge over the prayer for status quo / stay

Holding

The single judge declined to grant the status quo prayer because under Rule 53(2)(b) a single judge cannot entertain applications for stay of execution, injunction or stay of further proceedings.

Reasoning

The court noted that although the applicant framed the prayer as an order of status quo, in substance it sought relief under Rule 5(2)(b), which allows stay of execution or of further proceedings where a notice of appeal has been lodged. However, Rule 53(2)(b) expressly withholds from a single judge the power to hear such applications. The prayer was therefore outside the single judge's powers and was declined on that basis alone.

p. 3
02

Extension of time to file notice of appeal, memorandum of appeal and record of appeal

Holding

The applicant's explanation for the delay was reasonable because the judgment pronounced in his presence was in his favour on his counterclaim, and he only learned of the contrary typed judgment upon being served with a notice of intended execution. The appeal was arguable and the respondent would suffer no prejudice.

Reasoning

The court applied the Rule 4 factors: reason for delay, prejudice and arguability. The applicant produced a notice of appeal filed by the respondent and evidence that the respondent had begun complying with the judgment as pronounced, by obtaining Land Control Board consent to sub-divide 13 acres in the applicant's favour. This lent credence to the explanation that no appeal was filed because the applicant believed the judgment was in his favour. The court also found arguability in the question whether Section 3(3) of the Law of Contract Act and Land Control Act consent requirements apply to a declaration of trust, and found greater prejudice to the applicant who occupied the suit property.

p. 3

Legal principles established

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  • The power of a single judge under Rule 4 of the Court of Appeal Rules to extend time is unfettered but discretionary and must be exercised judicially, having regard to the length and reason for delay, prejudice to the respondent, and arguability of the appeal.
  • A single judge of the Court of Appeal has no power to hear an application for stay of execution, injunction or stay of further proceedings; such applications fall to be heard by the full Court under Rule 5(2)(b).

Court orders

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  1. 1.Declined to grant prayer (3) of the motion seeking an order of status quo, as a single judge has no powers under Rule 53(2)(b) to entertain an application for stay of execution, injunction or stay of further proceedings
  2. 2.Granted prayer (2) of the motion: extended time for the applicant to file and serve the notice of appeal, memorandum of appeal and record of appeal within 30 days from the date of the ruling
  3. 3.Costs of the application shall be costs in the appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3, 3A and 3B
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 53(1)
  • Court of Appeal RulesRule 53(2)(b)
  • Constitution of Kenya, 2010Article 159
  • Law of Contract Act Cap 23Section 3(3)
  • Land Control Act Cap 302Land Control Board consent provisions

Cases cited (2)

  • Origo & Another vs Mungala
    [2005] 1 KLR 178
  • Gitetu vs Kenya Commercial Bank Ltd
    [2009] KLR 545
On appeal from
High Court of Kenya at Kericho
Kericho HCC No.64 of 2009 (also referred to as No.64 of 2008)
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, with Article 159 of the Constitution of Kenya, 2010

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, "Philip Kipyegon Lelei v Jonathan Kimutai Mibei [2016] KECA 226 (KLR)", Case Analysis (2016). Civil Application (extension of time motion dated 24th July, 2015, arising from Kericho High Court Civil Case No.64 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/226/eng@2016-09-15

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