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Court of AppealDismissedCivil Application (Motion) dated 14th June 2016· [2017] KECA 644 (KLR)

1. Lucas Mwita Machera 2. Nyansivi Habuba Mwita v 1. Gati Maroa Wangera 2. Esther Mbone

Court of Appeal of Kenya
30 March 2017
1,361 words in judgment
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The bottom line

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The Court of Appeal refused to extend time to appeal because the applicant couldn't explain the delay, prove he requested court proceedings, or show the appeal had merit.

What this practically means

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Executive summary

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The applicant, Lucas Mwita Machera, moved the Court of Appeal at Kisumu under Rule 4 of the Court of Appeal Rules, 2010 seeking extension of time to file a notice and record of appeal against a High Court ruling of 17th March 2016 which had dismissed his application to introduce a new witness in land dispute proceedings concerning Bukira/Buhiringera/101. He attributed the delay to the non-release of court proceedings and to financial hardship. The respondents, through Gati Maroa Wangera's replying affidavit, opposed the application as frivolous and an abuse of process, noting a pending joinder application and a succession cause before the High Court. Applying the settled Rule 4 factors from Leo Sila Mutiso v Rose Hellen Wangari Mwangi - length of delay, reason for delay, arguability of the appeal and prejudice to the respondent - A.K. Murgor, JA held that the applicant had given no explanation for failing to file the notice of appeal within 14 days, and had failed to exhibit any request for proceedings or certificate of delay to establish that the delay in filing the record was attributable to the registry. Following Francis Mwai Karani v Robert Mwai Karani, the Court reaffirmed that impecuniosity is not a valid ground for extension of time, and in any event the claim of financial hardship was unevidenced. As no draft memorandum of appeal was filed, the arguability of the intended appeal could not be assessed, and the pending succession cause meant the respondents would suffer prejudice. The application was dismissed with costs.

Key legal issues

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01

Reason for delay in filing the notice of appeal

Holding

The applicant offered no explanation for failing to file the simple notice of appeal within 14 days of the ruling

Reasoning

The ruling was delivered on 17th March 2016 and the application lodged on 14th June 2016. The notice of appeal is a simple document with a 14-day filing window; the applicant provided no explanation for its late filing, and the asserted inability to obtain proceedings could not excuse it.

p. 2
02

Reason for delay in filing the record of appeal

Holding

The applicant failed to prove that he requested proceedings or obtain a certificate of delay, so the delay was not attributable to the registry or judge

Reasoning

Under Rule 82, the time taken to prepare proceedings is excluded only upon a request for proceedings served on the respondent and certification by the registrar. The supporting affidavit disclosed no such request, no service, and no certificate of delay, so the alleged registry delay was unproven.

p. 2
03

Financial constraints as a reason for delay

Holding

Impecuniosity cannot justify extension of time, and the applicant in any event adduced no evidence of financial hardship

Reasoning

Following the dictum in Francis Mwai Karani v Robert Mwai Karani, lack of money is not a valid reason for extension of time, though each case turns on its own facts. Additionally, there was nothing on the record to substantiate the applicant's claim of financial challenges.

p. 3
04

Chances of success of the intended appeal

Holding

The court could not assess the merits because no draft memorandum of appeal was filed

Reasoning

The application did not disclose the nature of the intended appeal or its grounds, so the court was unable to determine whether the appeal was arguable. This failure weighed against the application independently of the delay.

p. 3
05

Prejudice to the respondents

Holding

Granting the extension would prejudice the respondents, given a pending succession cause being prolonged

Reasoning

There was a succession cause pending in the High Court which the continued litigation was prolonging; extending time would therefore visit extreme prejudice on the respondents.

p. 3

Legal principles established

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  • Extension of time under Rule 4 is discretionary and judged against four factors: length of delay, reasons for delay, chances of success, and prejudice to the respondent
  • Impecuniosity is not a valid reason for extending time to lodge an appeal
  • The period certified by the registrar for preparation of proceedings is excluded when computing delay, but the applicant must exhibit the request and the certificate of delay

Court orders

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  1. 1.The Notice of Motion dated 16th June 2016 is dismissed with costs to the respondents
On appeal from
High Court of Kenya at Migori
null
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 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, "1. Lucas Mwita Machera 2. Nyansivi Habuba Mwita v 1. Gati Maroa Wangera 2. Esther Mbone", Case Analysis (2017). Civil Application (Motion) dated 14th June 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/644/eng@2017-03-30

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