Nehemiah Kimathi & another v Grace Wambui Muriuki &12; others [2020] KECA 45 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend filing time because the appellants never served a required letter on respondents, so their deadline expired and the appeal died.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants should be granted leave to lodge an appeal out of time against the judgment of the Environment and Land Court delivered on 14th June 2019
- 2.Whether the delay in filing the appeal was inordinate and satisfactorily explained, taking into account the length of and reasons for the delay
- 3.Whether the applicants complied with Rule 82(2) of the Court of Appeal Rules by serving the letter bespeaking proceedings on the respondents
Key legal issues
#Extension of time under Rule 4 of the Court of Appeal Rules
The application fails because the applicants did not serve the letter bespeaking proceedings on the respondents, a condition precedent under Rule 82(2) to excluding the time taken in typing proceedings from the 60-day computation; the 60 days therefore ran uninterrupted and expired long before the application.
The court applied the four Mutiso factors: length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent. Although a certificate of delay was on record, exclusion of the typing period is not automatic — Rule 82(2) requires the written bespeaking letter to be served on the respondent. The letter on record bore no copy to any respondent, and the respondents confirmed non-service. Without proof of service the 60 days ran uninterrupted and had lapsed. A casual approach to the rules disentitles a party to the discretionary relief.
Whether the delay was excusable as occasioned by the court registry
The delay was not excused because, in addition to non-service of the bespeaking letter, the respondents showed the typed proceedings were ready for collection on 9th October 2019 yet were collected on 19th November 2019, indicating lack of due diligence.
The applicants attributed the delay to the Environment and Land Court registry and relied on a certificate of delay. The respondents countered that the proceedings were ready on 9th October 2019 but collected only on 19th November 2019, and that the notice of appeal was served well beyond the seven days required by Rule 77(1). The court accepted the Rule 82(2) non-compliance as decisive and held that due diligence in observing statutory appellate rules was not demonstrated, making the applicants undeserving of the relief.
Legal principles established
#- Compliance with Rule 82(2) — written application for typed proceedings served on the respondent — is a condition precedent to excluding the time taken to prepare proceedings from the 60-day period for lodging a record of appeal.
- A party who approaches the Court's rules casually does not deserve extension of time; the rules must be adhered to at all times.
- There is no fixed maximum or minimum period of delay, but an applicant for extension of time must satisfactorily explain the cause of the delay.
Court orders
#- 1.Prayer to extend time to file the appeal declined
- 2.The application dated 3rd May 2020 dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court of Kenya at Thika
- Cause No. 449 of 2017
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for extension of time)
Relief refused
#Leave to lodge an appeal out of time against the judgment and decree of the Environment and Land Court at Thika dated 14th June 2019
The applicants failed to serve the letter bespeaking proceedings on the respondents as required by Rule 82(2) of the Court of Appeal Rules, so the 60-day period ran uninterrupted and had lapsed; a casual approach to the Court's rules disentitles a party to extension of time.
Deeming the Record of Appeal as duly filed and ordered served on the defendants
This consequential relief fell away with the refusal to extend time.
Costs
The application was dismissed with costs (costs awarded to the respondents).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.
this exclusion is not automatic since the party appealing must comply with Rule 82 (2) which introduces a condition precedent to the accessing the relief in Rule 82 (1)
Without proof of such service, the 60days as stipulated by the law ran uninterrupted and had obviously ran out long before this application was filed.
The Rules of this Court must be adhered to by parties at all times. Their importance cannot be overstated and therefore a party that has a casual approach to their adherence is not deserving of this relief.
In the result, I decline to grant the prayer to extend time to file the appeal, and accordingly dismiss the application with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nehemiah Kimathi & another v Grace Wambui Muriuki &12; others [2020] KECA 45 (KLR)", Case Analysis (2020). Cause No. 449 of 2017 (appeal against judgment of the Environment and Land Court at Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/45/eng@2020-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.