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Court of AppealDismissedCivil Application (Nairobi) - Notice of Motion dated 11th June, 2019· [2019] KECA 204 (KLR)

William Njihia Kimani v Francis Waweru Mbochi [2019] KECA 204 (KLR)

Court of Appeal of Kenya
8 November 2019
3,004 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal (Nambuye, JA) on a Notice of Motion dated 11th June 2019 by William Njihia Kimani seeking leave to file and serve a notice of appeal and record of appeal out of time against a ruling delivered on 23rd November 2010 by Okwengu J in Nairobi ELC Civil Case No. 2761 of 1994 (now Nyahururu ELC Case No. 36 of 2018), which nullified his title to suit property in his absence. The applicant blamed an unnamed former advocate for failing to notify him of the ruling, only learning of it in December 2018 when served with eviction proceedings. The respondent, through a replying affidavit and documents, showed the applicant's advocate had applied for and collected proceedings and the ruling in 2011, evidencing awareness. The court held the application was governed by Rule 4 of the Court of Appeal Rules, not the Civil Procedure Act and Rules. Applying settled Rule 4 principles - length of and reasons for delay, arguability, prejudice and other factors - the court found a delay of eight years, six months and nineteen days inordinate and unexplained, the applicant deemed to have sat on his appellate right. Although the intended appeal was arguable, and the executed 2010 order had vested title in the respondent who transferred the property to third parties, the Rule 4 threshold was not met. The application was dismissed with costs to the respondent.

Key legal issues

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01

Applicable procedural framework

Holding

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.

Reasoning

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.

p. 1
02

Reasons for the delay

Holding

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.

Reasoning

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.

p. 3
03

Chances of the appeal succeeding

Holding

The intended appeal was arguable on its three proposed grounds, but arguability alone could not validate a belated appellate process.

Reasoning

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.

p. 3
04

Prejudice to the respondent

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The applicant's Notice of Motion dated 11th June, 2019 is dismissed
  2. 2.The respondent will have costs of the application

Authorities

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Legislation

  • Civil Procedure Actnot specified
  • Civil Procedure Rulesnot specified
  • Court of Appeal RulesRule 4

Cases cited (12)

  • Tana & Athi River Development Authority versus Jeremiah Kimigho Mwakio & 3 others
    [2015] eKLR
  • Paul Wanjohi Mathenge versus Duncan Gichane Mathenge
    [2013] eKLR
  • Nicholas Kiptoo Arap Salat versus Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
  • Edith Gichugu Koine versus Stephen Njagi Thoithi
    [2014] eKLR
  • Nyaigwa Farmers' Co-operative Society Limited versus Ibrahim Nyambare & 3 Others
    [2016] eKLR
  • Hon. John Njoroge Michuki & Another versus Kentazuga Hardware Limited
    [1998] eKLR
  • Cargil Kenya Limited Nawal Versus National Agricultural Export Development Board
    [2015] eKLR
  • Fakir Mohamed versus Joseph Mugambi & 2 Others
    CA Nai. 332 of 2004
  • Joseph Wanjohi Njau versus Benson Maina Kabau
    Civil Application No. 97 of 2012 (UR)
  • Richard Nchapi Leiyagu versus IEBC & 2 Others
    Civil Appeal No. 18 of 2013 (UR)
  • George Mwende Muthoni versus Mama Day Nursery and Primary School Nyeri
    CA No. 4 of 2014 (UR)
  • Aviation Cargo Support Limited versus St. Marks Freight Services Limited
    [2014] eKLR
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

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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, "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.