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Court of AppealDismissedNot stated in the extract

Raphael Musila Mutiso & 3 others v Joseph Ndava Nthuka & another [2019] KECA 463 (KLR)

Court of Appeal of Kenya
19 July 2019
887 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicants couldn't explain a five-month delay after learning of the judgment against them.

What this practically means

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Executive summary

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This was a single-judge application under Rule 4 of the Court of Appeal Rules seeking enlargement of time to lodge a notice of appeal against the judgment of Angote, J of the Environment and Land Court at Machakos delivered on 22nd September, 2017, which dismissed the applicants' amended counter-claim, allowed the respondents' suit, ordered their eviction and permanently restrained them from interfering with the suit land. The applicants, who claimed to have lived on the land since 2004 and that the respondents held it in trust for them, submitted they were never notified of the delivery of the judgment and only learnt of it in July 2018 when the 1st applicant visited the registry. After a first, withdrawn application filed in October 2018 containing a misdescription of parties, they filed the present application on 30th January, 2019. Applying the settled principles from Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Ouko, JA (P) held that while the delay before July 2018 was explained by the court's failure to notify the parties, there was no explanation for the further five months, that the respondents would be prejudiced given the judgment was nearly two years old, and that the intended appeal - resting on an unproven trust - appeared to have no reasonable chances of success. The application was dismissed with no order as to costs on 19th July, 2019.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants should be granted enlargement of time to file a notice of appeal against the judgment of the Environment and Land Court delivered on 22nd September, 2017
  2. 2.Whether the delay in filing the application was inordinate and satisfactorily explained
  3. 3.Whether the respondents would be prejudiced if the extension were granted
  4. 4.Whether the intended appeal has reasonable chances of success

Key legal issues

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01

The principles governing extension of time under Rule 4 of the Court of Appeal Rules

Holding

The single judge must satisfy himself that the delay was not inordinate, that the reasons are plausible, that no prejudice will be caused to the respondent, and (possibly) that the appeal has reasonable chances of success.

Reasoning

Rule 4 empowers a single judge to extend time on such terms as he thinks just. Following the long line of authorities led by Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court applies the four familiar factors. Here the delay before July 2018 was attributable to the court's failure to notify the parties of the judgment date, but the applicants then took five further months without explanation, and the judgment was nearly two years old, so prejudice to the respondents and the absence of a plausible explanation required dismissal.

p. 2
02

Whether the intended appeal had reasonable chances of success

Holding

The court, without expressing a definitive position, doubted the appeal's prospects because trust was not proved.

Reasoning

As a possible fourth factor, the court considered whether the intended appeal was arguable. The applicants claimed they had lived on the suit land since 2004 and that the respondents held it in trust for them. The judge expressed the tentative view that trust was not proved, and therefore the appeal did not appear to have reasonable chances of succeeding, reinforcing the refusal of the extension.

p. 2

Legal principles established

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  • Whether or not to extend time for filing a notice of appeal or lodging the appeal is discretionary and depends on the length of the delay, the reason for the delay, the degree of prejudice to the respondent, and possibly the chances of the appeal succeeding.
  • The most critical consideration in an application for extension of time is the explanation for the delay; even a short delay will defeat an unexplained application.

Court orders

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  1. 1.The application for enlargement of time to file a notice of appeal is dismissed
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

William Ouko
W. OUKOJA
Currently serving
majority

Wrote the judgment

On appeal from
Environment and Land Court at Machakos
Not stated in the extract
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (power of a single judge to extend time)

Relief refused

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Enlargement of time within which to lodge a notice of appeal against the judgment and decree of the Environment and Land Court

Although the delay before July 2018 was explained by lack of notice of the judgment date, the applicants offered no explanation for the five months thereafter; the delay in explanation, the prejudice to the respondents, and the weakness of the intended appeal all weighed against the extension.

p. 2

Costs

I make no orders as to costs. (Each party to bear their own costs.)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In an application for extension of time the most critical consideration is the explanation for the delay. A delay of a day will result in the application being dismissed if there is no explanation.
p. 2Primacy of explanation for delay in Rule 4 applications
In the result this application must fail. It is accordingly dismissed. I make no orders as to costs.
p. 2Final orders - dismissal of the application

Issues in the judgment

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minor

The citation of Leo Sila Mutiso appears inconsistently as 'Civil Appeal No. 255 of 1997' and 'Civil Application No. Nai. 255 of 1997' within the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Raphael Musila Mutiso & 3 others v Joseph Ndava Nthuka & another [2019] KECA 463 (KLR)", Case Analysis (2019). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/463/eng@2019-07-19

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