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Court of AppealDismissedCivil Application No. Nai. 51 of 2017 (as inferred from the record)· [2018] KECA 783 (KLR)

Permanent Secretary, Ministry of State for Defence & another v Mahat Kuno Roble & 4 others [2018] KECA 783 (KLR)

Court of Appeal of Kenya
21 February 2018
2,339 words in judgment
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The bottom line

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The Court of Appeal refused the Attorney General extra time to appeal a Kshs 1.5 million land damages award, because every delay went unexplained.

What this practically means

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Executive summary

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This is a ruling by Musinga, JA (sitting singly) of the Court of Appeal at Nyeri on a notice of motion dated 28th April 2017 by the Hon. Attorney General on behalf of State applicants seeking extension of time to lodge and serve a notice of appeal out of time against a judgment of the Environment and Land Court at Kerugoya delivered on 19th August 2016. That judgment had allowed the respondents' constitutional petition, declaring the applicants' trespass on their parcels of land a violation of Article 40 and awarding Kshs 1,500,000.00 in general damages. The applicants said they were never notified of the judgment date and learned of it on 25th September 2016; they filed a notice of appeal on 5th October 2016 but served it on 4th November 2016, outside the seven days allowed by rule 77(1), and only filed the extension application on 25th May 2017. The court applied the settled rule 4 factors: length of and reasons for delay, chances of success, and prejudice. It found the applicants were not to blame for missing the judgment date, but that every subsequent period of delay was unexplained; no draft memorandum of appeal was filed to show arguability despite the trial court's adverse findings on title and occupation; and the respondents would be prejudiced since the applicants still occupied the land and had not paid the damages. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the delay in filing and serving the notice of appeal and in filing the extension application was explained

Holding

The applicants failed to explain any of the periods of delay from becoming aware of the judgment until filing the application

Reasoning

The applicants' advocates became aware of the judgment on 25th September 2016, filed the notice on 5th October 2016 but served it only on 4th November 2016, contrary to rule 77(1), and did not file the extension application until 25th May 2017. None of these delays was explained, and the court cannot be blamed because there was no proof the applicants knew the judgment date.

p. 4
02

Whether the intended appeal had chances of success

Holding

In the absence of a draft memorandum of appeal, the applicants failed to demonstrate that the intended appeal was arguable with high chances of success

Reasoning

Counsel conceded no draft memorandum was filed and gave no reason for its omission. The trial court had found the respondents held valid titles, that the land was never gazetted as public land for the Garissa Barracks, and that the applicants demolished a boundary wall in breach of a court order. Public interest assertions about military occupation were insufficient.

p. 4
03

Whether the respondents would suffer prejudice if extension was granted

Holding

The respondents demonstrated prejudice as the applicants remain in occupation and have not paid the damages awarded

Reasoning

The applicants were still occupying the suit properties, had not complied with the trial court's judgment, and had not paid the Kshs 1,500,000.00 in general damages awarded for violation of the respondents' Article 40 rights. Granting extension would therefore further prejudice the respondents.

p. 4

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 success of the intended appeal and the degree of prejudice to the respondent
  • Every period of delay must be explained by the party at fault before the discretion under rule 4 can be exercised
  • Extension of time is a discretionary remedy, not a right, available only to a deserving party who lays a basis for the exercise of the discretion
  • Timelines in the Court's Rules are not ornamental; a party who fails to comply must offer an appropriate explanation

Court orders

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  1. 1.The application dated 28th April 2017 is dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 77(1)
  • Constitution of Kenya, 2010Article 40

Cases cited (6)

  • Macwatt Estates Limited vs. Mbwanji Limited
    [2001] eKLR
  • Hezron Alloys Nyachae vs. James Obiri Oenga & another
    [2016] eKLR
  • Mwangi vs. Kenya Airways Ltd
    [2003] KLR 486
  • Rael Munyaka & 6 Others vs. Waitaluk Land Disputes Tribunal & 2 others
    [2007] eKLR
  • Gachuhi Muthanji vs. Mary Njuguna
    [2014] eKLR
  • Joel Tirop Busienei vs. David Randichi
    [2016] eKLR
On appeal from
Environment and Land Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application for extension of time before a single Judge)

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, "Permanent Secretary, Ministry of State for Defence & another v Mahat Kuno Roble & 4 others [2018] KECA 783 (KLR)", Case Analysis (2018). Civil Application No. Nai. 51 of 2017 (as inferred from the record). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/783/eng@2018-02-21

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