Fanuel Nyateng v Town Council of Muhoroni [2018] KECA 253 (KLR)
The bottom line
#Kenya's Court of Appeal allowed an out-of-time appeal notice, holding that a litigant shouldn't be penalised for a two-day delay caused by the court registry itself.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave should be granted to file the notice of appeal out of time
- 2.Whether the notice of appeal lodged on 30th June, 2017 should be deemed properly filed
- 3.Whether the intended appeal is frivolous, whether the delay is inordinate, and whether the respondent would suffer prejudice
Key legal issues
#Whether the 2-day delay in lodging the notice of appeal warranted extension of time
Yes. The notice was presented to the registry within the 14 days but the Deputy Registrar signed it two days later; the delay was systemic and caused no prejudice.
The judgment was delivered on 14th June 2017 and the 14-day period expired on about 28th June 2017. Counsel deponed that the notice was taken to the registry on the morning of 28th June but the Deputy Registrar was unavailable to sign, and it was signed on 30th June. Since the delay was attributable to the registry and not the applicant, and no prejudice was shown, extension was warranted.
Whether the intended appeal was frivolous
No. The respondent's case was that the applicant occupied the wrong plot, not that he was not entitled to a plot, so the intended appeal was arguable.
The ELC dismissed the suit for want of a formal letter of allotment. The court found the respondent did not dispute the applicant's entitlement to a plot but only his occupation of the correct one. Together with the applicant's 30 years' possession and payment of rates, this made the proposed grounds of appeal non-frivolous.
Legal principles established
#- An applicant for extension of time must show that the intended appeal is not frivolous, that the delay is not inordinate, and that the respondent would not suffer undue prejudice if time is extended.
- Where a notice of appeal is presented to the registry within the 14-day period but signed late due to registry/systemic delay, the applicant is not to blame and extension may be granted.
Court orders
#- 1.Time for filing the notice of appeal is extended
- 2.The notice of appeal lodged on 30th June, 2017 is deemed as duly filed within time
- 3.Costs of the application shall be costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court (ELC)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The applicant has to show, inter alia, that, the intended appeal or appeal is not frivolous, that the delay is not inordinate and that if time is extended, the respondent would not suffer undue prejudice.
The applicant is not to blame for the systemic delay of 2 days. Moreover, the delay has not caused any prejudice to the respondent.
In the premises, the application is allowed. Time is extended and the notice of appeal lodged on 30 th June, 2017 is deemed as duly filed within time.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fanuel Nyateng v Town Council of Muhoroni [2018] KECA 253 (KLR)", Case Analysis (2018). Not stated (Court of Appeal application under Rule 4). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/253/eng@2018-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.