William Njihia Kimani v Francis Waweru Mbochi [2019] KECA 204 (KLR)
The bottom line
#The Court of Appeal refused to revive a landowner's appeal filed over eight years late, because he gave no believable reason for the delay.
What this practically means
#Executive summary
#Key legal issues
#Applicable procedural framework
The application falls to be determined under Rule 4 of the Court of Appeal Rules, not the Civil Procedure Act and Rules, which have no application to Court of Appeal procedures.
The court noted the application invoked the Civil Procedure Act and Rules plus enabling provisions, but held those provisions do not govern proceedings before the Court of Appeal. Rule 4 CAR alone forms the basis of determination, notwithstanding the omnibus invocation of other enabling provisions of the law.
Reasons for the delay
The applicant offered no credible explanation: there was nothing to show he had an advocate on record, and documents showed his alleged advocate had capacity to initiate the appellate process, which he failed to do within a reasonable time.
The court found no record supporting the applicant's claim of an unnamed advocate who failed to notify him. The respondent's documentary exhibits showed proceedings were applied for, collected and paid for in 2011. In the absence of rebuttal evidence, the applicant was deemed to have sat on his appellate right for over eight years without explanation.
Chances of the appeal succeeding
The intended appeal was arguable on its three proposed grounds, but arguability alone could not validate a belated appellate process.
The proposed grounds - that the judge entertained an application from a withdrawn matter and nullified a title deed on an application - raised triable issues. However, the right to exercise the appellate right depended on satisfying the Rule 4 threshold, which the applicant failed to do on delay and explanation.
Prejudice to the respondent
The respondent would suffer prejudice: the 2010 order was executed, vesting title in the respondent who transferred the property to third parties not party to the application.
There was uncontroverted deposition, supported by documentary exhibits evidencing change of ownership of resulting titles, that the impugned order had been executed and title passed to third parties. Granting extension would therefore prejudice the respondent and affect non-parties.
Legal principles established
#- Rule 4 of the Court of Appeal Rules confers a discretionary, unfettered jurisdiction to extend time which must nonetheless be exercised judicially, considering the length of and reasons for the delay, the arguability of the intended appeal, the degree of prejudice to the respondent and any other relevant factors.
- An arguable appeal need not be one that must succeed, but one that ought to be argued fully before the court.
- Although the right of appeal is constitutionally entrenched, it must be exercised in accordance with laid-down procedures, including initiating it timeously or meeting the Rule 4 threshold where there is default.
Court orders
#- 1.The applicant's Notice of Motion dated 11th June, 2019 is dismissed
- 2.The respondent will have costs of the application
- On appeal from
- High Court of Kenya at Nairobi (E.L.C Division)
- Civil Case No. 2761 of 1994 (currently E.L.C. at Nyahururu E.L.C. Case No. 36 of 2018)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (CAR)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Njihia Kimani v Francis Waweru Mbochi [2019] KECA 204 (KLR)", Case Analysis (2019). Civil Application (Nairobi) - Notice of Motion dated 11th June, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/204/eng@2019-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.