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Court of AppealDismissedCivil Application No. 59 of 2016· [2018] KECA 849 (KLR)

Jonah Kipsaina Cherotich & 3 Others v Rael Tarlock Sawe & 2 Others

Court of Appeal of Kenya
15 February 2018
2,325 words in judgment
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The bottom line

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The Court of Appeal refused to forgive a three-year delay in filing an appeal because the applicants never gave a convincing explanation.

What this practically means

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Executive summary

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This is a single-judge (in chambers) ruling of the Court of Appeal at Eldoret on a Notice of Motion under Rule 4 of the Court of Appeal Rules, in which four applicants sought extension of time to file and serve a Notice of Appeal against a High Court judgment (Ibrahim, J.) dated 4th June 2015 in HCCC No. 10 of 2000, a land dispute concerning a declaration that surrender of suit property was null and void. The Notice of Appeal was filed on 17th June 2015, within time, but the record of appeal was never filed within the 60-day period under Rule 82(1), and the extension application was only lodged on 8th August 2016. The applicants blamed their former advocates' failure to collect proceedings and claimed financial constraints; the respondents objected that the delay was inordinate and unexplained, that no Certificate of Delay existed, and that the decree had been implemented. Applying the settled Rule 4 factors - length and explanation of delay, prejudice, arguability and public importance - the court accepted the appeal was arguable but held the inordinate delay of about three years had not been satisfactorily explained, noting the current advocates' six months of unexplained inactivity after coming on record on 17th February 2016. The motion was dismissed with costs to the respondents. The decision turned on the applicants' failure to place sufficient material before the court to unlock its discretionary favour.

Key legal issues

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01

Whether the delay in filing the record of appeal was satisfactorily explained

Holding

The delay was inordinate and unexplained; no Certificate of Delay was produced and the current advocates did not explain their inactivity after coming on record on 17th February 2016.

Reasoning

The Deputy Registrar had notified previous advocates on 15th September 2015 that proceedings were ready for collection. No positive steps toward prosecuting the appeal were shown until the application of 8th August 2016, roughly six months after the new advocates came on record, and the respondents were kept from the fruits of their judgment for about three years.

p. 4
02

Whether the intended appeal is arguable

Holding

The draft memorandum of appeal raises arguable issues, including whether the judge erred in declaring the surrender of the suit property null and void, but arguability alone did not justify extension.

Reasoning

The court perused the draft memorandum dated 8th May 2017 and found arguable issues, but weighed this against the unexplained delay and prejudice to the respondents, holding that an arguable appeal does not necessarily mean one which will succeed.

p. 4
03

Balancing procedural compliance against determination on the merits

Holding

The rules must prima facie be complied with so litigation can be brought to an end; procedural default denies a hearing only where it causes prejudice costs cannot compensate.

Reasoning

Citing Lakha, JA, the court acknowledged the competing salutary principles of observance of rules and determination on the merits, but found no material before it to warrant exercise of discretion in the applicants' favour given the unexplained delay and prejudice.

p. 4

Legal principles established

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  • Extension of time under Rule 4 is a discretionary, unfettered power; the applicant must explain to the court's satisfaction why the discretion should be exercised in their favour, considering delay, reasons, prejudice and public importance.
  • There is no minimum or maximum period of delay; any delay must be satisfactorily explained, and a plausible and satisfactory explanation is the key to the court's discretionary favour.
  • An arguable appeal need not be one that will succeed; it suffices that it raises issues fit for determination.

Court orders

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  1. 1.Dismissal of the Amended Notice of Motion dated 8th May, 2017
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75(2)
  • Court of Appeal RulesRule 82(1)

Cases cited (5)

  • Fakir Mohammed v Joseph Mugambi & 2 Others
    Civil Appln No. Nai 332/04 (unreported)

    Enumerating relevant but non-exhaustive factors for extension of time under Rule 4.

  • Wasike v Swala
    [1984] KLR 591

    Factors in descending scale of importance: merit, no undue prejudice, delay not inordinate.

  • Mwaniki Njoroge Kamau & Another v Lee Sheth Poong
    Civil Appln No. Nai 55 of 1998 (unreported)

    Balancing observance of rules against denying determination on merits absent compensable prejudice.

  • Monica Malel & Another v R
    Eldoret Civil Application No. Nai 246 of 2008

    Reason for delay must be specific and not based on guess work.

  • Waweru & Another v Karoni
    [2003] KLR 448

    Rules must prima facie be obeyed; material must exist to justify extension of time.

On appeal from
High Court of Kenya at Eldoret
HCCC No. 10 of 2000
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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, "Jonah Kipsaina Cherotich & 3 Others v Rael Tarlock Sawe & 2 Others", Case Analysis (2018). Civil Application No. 59 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/849/eng@2018-02-15

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