David Rowland Matende & another v Joshua Akeyo Ogendo [2019] KECA 291 (KLR)
The bottom line
#Kenya's Court of Appeal gave a landowner a second chance to appeal, ruling that unclear notice of judgment and arguable grounds outweighed the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the Notice and Record of Appeal was inordinate and excusable
The delay was not inordinate; the court found it was not clear whether the parties were notified of the judgment date, and the lapses did not outweigh the applicant's grounds of appeal.
The applicant attributed the delay to non-receipt of notice of the judgment delivered on 29 September 2017, which the respondent disputed without documentary proof. The applicant's failure to follow up with his erstwhile advocates, who demanded KShs. 150,000 in fees, was not a valid reason, but the uncertainty over notification of the judgment date and the arguable grounds in the draft memorandum outweighed the inconvenience to the respondent.
Failure to serve the application on the respondent for over a year
The court acknowledged counsel's failure to serve the application promptly but treated it as a lapse not sufficient to defeat the application.
The respondent's counsel complained that the application filed on 8 December 2017 was only served on 3 April 2019. The court accepted this lapse and compensated it in costs rather than dismissing the application, in keeping with the principle that justice should be administered without undue regard to procedural technicalities.
Whether the intended appeal was arguable
The draft memorandum of appeal proposed about eight grounds challenging the judgment on points of law, including whether the plot identified in the judgment was the same as the plot on the ground.
The applicant contended the dispute was over Plot No. D7904 Dandora Phase 2 Area 4 and that the plot awarded by the ELC was not the same as what was on the ground. The court accepted this raised an arguable point of law supporting the extension.
Legal principles established
#- Rule 4 confers an unfettered discretion to extend time, but that discretion must be exercised judiciously, having regard to the length of and reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent.
- Parties have a duty to take an interest in and follow up their cases even when represented by counsel; blaming an advocate alone is not a sufficient reason for delay.
- There is no limit to the number of relevant factors a court may consider on an application for extension of time; the overarching objectives of administering justice without undue regard to technicalities under Sections 3A and 3B of the Appellate Jurisdiction Act are paramount.
Court orders
#- 1.Extension of time for filing and serving both the Notice of Appeal and the Record of Appeal
- 2.Applicant to file and serve the Notice of Appeal within seven (7) days from the date of the ruling
- 3.Applicant to file and serve the Record of Appeal within thirty (30) days of service of the Notice of Appeal
- 4.Costs of the application assessed at KShs. 15,000 awarded to the respondent
- On appeal from
- Environment and Land Court
- ELC Appeal No. 72 of 2014
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules; Sections 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Rowland Matende & another v Joshua Akeyo Ogendo [2019] KECA 291 (KLR)", Case Analysis (2019). Application in Environment and Land Court Appeal No. 72 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/291/eng@2019-09-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.