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Court of AppealAllowed· [2019] KECA 621 (KLR)

Mary Nchekei Paul v Francis Mundia Ruga [2019] KECA 621 (KLR)

Court of Appeal of Kenya
21 June 2019
1,427 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a landowner to appeal late after wrong advice, confirming short, explained delays can be forgiven when eviction is at stake.

What this practically means

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Executive summary

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This was a single-judge application under rules 4, 82 and 90 of the Court of Appeal Rules seeking leave to file and serve a notice of appeal and record of appeal out of time, following a High Court judgment delivered on 11th July 2018 in which the applicant was ordered to vacate land she had occupied since 1981. The applicant filed a notice of appeal in person within time but withdrew it after registry advice that, having an advocate on record, she could not file it herself. The respondent opposed, relying on S.K. Tarwadi v Veronica Muehlemann and Order 9 rule 9 of the Civil Procedure Rules to argue that the incoming advocate, C.M. King'ori, was not properly on record without leave. The judge rejected this: the Court of Appeal has its own rules, and since G.M. Wanjohi Advocates never acted in the appeal and the application was a fresh filing, rule 23 of the Court of Appeal Rules required no leave. On the merits, applying the Leo Sila Mutiso principles, the judge found the delay of about 14 days not inordinate and well explained by the wrong advice; the intended appeal (turning on adverse possession against the respondent's counterclaim) was arguable; and the applicant's prejudice from eviction outweighed the respondent's wait of about a year. The application was allowed, with time extended to file and serve the notice and record of appeal within 14 days, each party bearing its own costs.

Key legal issues

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01

Whether Order 9 rule 9 of the Civil Procedure Rules applies to representation before the Court of Appeal

Holding

It does not; the Court of Appeal Rules govern representation in that Court. Since the application before the Court was a fresh filing by C.M. King'ori Advocates (who had not acted below), no leave or notice of change was required.

Reasoning

The respondent relied on S.K. Tarwadi v Veronica Muehlemann on Order 9 rule 9 to argue the incoming advocate was improperly on record. The judge held that the Court of Appeal has its own rules; rule 23 addresses change of advocate, and it applies only where the outgoing trial advocate acts in this Court. Because G.M. Wanjohi Advocates never acted for the applicant in the appeal and King'ori filed a fresh application, no compliance was needed.

p. 2
02

Whether the delay was inordinate and satisfactorily explained

Holding

Yes, the application was filed about 14 days late; the delay was not inordinate and was explained by the applicant's withdrawal of a timely, valid notice of appeal following wrong advice.

Reasoning

The 14-day period expired on 25th July 2018 and the application was filed on 8th August 2018. The notice of appeal filed in person on 18th July 2018 was itself proper in law since a party may file in person; the applicant need not have withdrawn it but did so on wrong advice. She promptly instructed counsel who filed the application without delay.

p. 2
03

Arguability of the intended appeal and balance of prejudice

Holding

The intended appeal is arguable, and the prejudice to the applicant (eviction from her only residence) outweighs the respondent's delay of about a year in enjoying his judgment.

Reasoning

Although no draft memorandum of appeal was filed, the affidavit, submissions and the impugned judgment showed the appeal was not frivolous; the judge noted the claim of adverse possession. If leave were refused the applicant would be evicted from land she has resided on since 1981, while the respondent would merely wait about a year for the appeal.

p. 2

Legal principles established

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  • In a rule 4 extension-of-time application, a single judge exercises a wide but judicial discretion, considering the length of and reasons for the delay, arguability of the intended appeal, and prejudice to the respondent.
  • The Civil Procedure Rules on change of advocate after judgment do not apply in the Court of Appeal; the Court's own rules govern, and a fresh application filed by new counsel requires no leave to come on record.

Court orders

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  1. 1.The notice of appeal and the record of appeal be filed and served within 14 days from the date of delivery of the ruling
  2. 2.Each party shall bear its own costs of the application

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 82
  • Court of Appeal Rulesrule 90
  • Court of Appeal Rulesrule 23
  • Civil Procedure Rules, 2010Order 9 rule 9

Cases cited (2)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    [1977] eKLR
  • S.K. Tarwadi v Veronica Muehlemann
    [2019] eKLR
On appeal from
High Court
Jurisdiction invoked
Rules 4, 82 and 90 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, "Mary Nchekei Paul v Francis Mundia Ruga [2019] KECA 621 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/621/eng@2019-06-21

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