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Court of AppealDismissedCivil Application No. 56 of 2018

Richard Kipkemei Limo v Hassan Kipkemboi Ngeny & 4 others [2019] KECA 765 (KLR)

Court of Appeal
10 May 2019
3,148 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to overturn a judge's decision giving a landowner extra time to appeal, confirming such decisions rarely get disturbed.

What this practically means

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Executive summary

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This was a reference to the full Court under Rule 55 of the Court of Appeal Rules against a decision of a single Judge (Githinji, J.A) who had granted Richard Kipkemei Limo an extension of time to file the memorandum and record of appeal out of time from a judgment of the Environment and Land Court at Eldoret (Ombwayo, J.) dated 9th February 2018. That judgment had dismissed Limo's petition seeking declarations that his title to Eldoret Municipality Block 7/178 was valid, nullified the certificates of lease issued to Limo and Enock Kibiwott Kiptanui, and declared that the 1st respondent, Hassan Kipkemboi Ngeny, was the lawful registered proprietor. Limo lodged a notice of appeal on 20th February 2018, requested proceedings on 22nd February 2018, and filed his record on 4th May 2018, about fourteen days out of time, attributing the delay to delays by the Deputy Registrar in certifying the proceedings. Hassan Kipkemboi Ngeny, supported by the other respondents, urged the full Court to find that the single Judge misdirected himself on arguability, the reason for the delay, service of the notice of appeal and letter requesting proceedings, and the balancing of prejudice. The Court applied the test in Hezekiah Michoki and the Rule 4 guidelines in Fakir Mohammed, holding that the single Judge's discretion is unfettered, that he properly considered the service issue and the explanation for delay, that he need only find the appeal arguable, and that the value of the property was a permissible consideration. The full Court, whose role is supervisory rather than substitutive, found no basis to interfere and dismissed the reference with costs on 10th May 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 full Court should interfere with the single Judge's (Githinji, J.A) exercise of discretion in granting extension of time under Rule 4
  2. 2.Whether the single Judge erred in finding that the intended appeal was arguable
  3. 3.Whether the applicant gave a reasonable explanation for the delay in filing the appeal
  4. 4.Whether the single Judge properly considered the issue of service of the notice of appeal and the letter requesting proceedings
  5. 5.Whether the single Judge erred in taking into account the value of the suit property and whether he failed to balance the parties' competing interests and prejudice

Key legal issues

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01

The test for interfering with a single Judge's decision on a reference to the full Court

Holding

The full Court interferes only where the single Judge took into account irrelevant factors, ignored relevant ones, applied wrong principles, or was plainly wrong; the full Court does not substitute its own discretion

Reasoning

The Court adopted the test in Hezekiah Michoki v Elizaphan Onyancha Ombongi, reiterating that the single Judge's discretion under the Rules is unfettered though judicially exercisable, and that the appellate mandate on a reference is supervisory, not substitutive, as also stated in Rozaah Akinyi Buyu v IEBC.

p. 1
02

Factors relevant to extension of time under Rule 4

Holding

The Rule 4 discretion is unfettered; delay, reason for delay, arguability, prejudice, effect on public administration, compliance with time limits, resources of the parties and public importance are relevant but not exhaustive factors

Reasoning

The Court restated the Fakir Mohammed v Joseph Mugambi guidelines and held that the single Judge appreciated his role and applied these factors, including consideration of the service issue, the reasonableness of the explanation for delay, the arguability of the appeal and the absence of demonstrated prejudice to the respondents.

p. 4
03

Whether the single Judge erred on arguability and consideration of the value of the property

Holding

The single Judge did not err: he needed only find that the appeal raised arguable points warranting consideration, and the value of the property was a permissible consideration under the unfettered Rule 4 discretion

Reasoning

The Court held the memorandum of appeal raised arguable points of law and fact; the reference to the length of the trial judgment merely buttressed that weighty issues of law were involved. The property's value, evidence of an offer for sale at Shs. 35,000,000, was a factor the single Judge could lawfully take into account under Rule 4.

p. 4
04

Whether the single Judge addressed service of the notice of appeal and the letter requesting proceedings

Holding

The single Judge did consider the service issue; non-compliance with Rule 82(1) and its proviso does not bar an applicant from applying for extension of time

Reasoning

Contrary to the respondents' contention, the single Judge expressly found there was a dispute over service of the letter of 22nd February 2018 and observed that by applying for extension of time the applicant implicitly conceded the appeal was out of time, which did not bar the application.

p. 4
05

Whether the single Judge failed to balance the parties' competing interests and prejudice

Holding

The Court was not convinced that the single Judge misdirected himself on the balance of interests and prejudice

Reasoning

The Court found the respondents had not demonstrated undue prejudice if time was extended, while the applicant would suffer prejudice as his title was registered first and he claimed to have constructed rental buildings on the plot. The full Court's role was limited to establishing that the single Judge exercised his discretion judicially.

p. 4

Legal principles established

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  • A full Court will not interfere with a single Judge's exercise of discretion unless it is shown that the single Judge took into account irrelevant factors, failed to take into account relevant factors, failed to apply correct principles, or that his decision was plainly wrong
  • The full Court's jurisdiction on a reference does not entail substituting its own discretion for that of the single Judge
  • A single Judge deciding a Rule 4 extension of time application has an unfettered discretion and may take into account the value of the subject matter of the intended appeal
  • In a Rule 4 application, a single Judge cannot make definite pronouncements on the success of the intended appeal; he need only be satisfied that the intended appeal raises issues warranting the Court's consideration

Court orders

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  1. 1.The reference to the full Court is dismissed with costs

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court of Kenya at Eldoret
Petition No. 4 of 2013
Jurisdiction invoked
Rule 55 of the Court of Appeal Rules (reference to the full Court against a decision of a single Judge), arising from a Rule 4 extension of time application

Relief refused

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The 1st respondent's reference seeking to have the full Court vary, discharge or reverse the single Judge's decision allowing extension of time

The full Court found that the single Judge exercised his discretion judicially and there were no good reasons for interfering with that decision

p. 5

Costs

The reference to the full Court is dismissed with 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.

For this Court to interfere with exercise of discretion by a single Judge sitting on behalf of the full Court and to vary, discharge or reverse that decision, the full Court must bear in mind that the single Judge was exercising a discretion which is unfettered, though exercisable judicially
p. 1Test for interference with a single Judge's discretion on reference to full Court
The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance-are all relevant but not exhaustive factors.
p. 4Rule 4 extension of time factors
our mandate is not to substitute our discretion with that of the single learned Judge, but only to establish whether the single judge exercised his discretion judicially.
p. 4Supervisory, not substitutive, role of the full Court on a reference
Accordingly, the reference to the full Court is dismissed with costs.
p. 5Final orders - dismissal of the reference

Issues in the judgment

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minor

The judgment records the Deputy Registrar's letter informing the advocate that proceedings were ready as dated 12th April 2008 and payment as 13th April 2008, while the events occurred in 2018 - an apparent typographical error in the year

minor

The coram states the court sat at Eldoret but the ruling is dated and delivered at Nairobi

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, "Richard Kipkemei Limo v Hassan Kipkemboi Ngeny & 4 others [2019] KECA 765 (KLR)", Case Analysis (2019). Civil Application No. 56 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/765/eng@2019-05-10

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