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Court of AppealAllowedNot stated in judgment (Civil Application arising from Kisii HC Succession Cause)· [2020] KECA 131 (KLR)

Peter Nyokangi Moraro v Geoffrey Magoro Osoro & another [2020] KECA 131 (KLR)

Court of Appeal of Kenya
4 December 2020
1,502 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a beneficiary more time to file an appeal, ruling that COVID-19 court disruptions justified the delay and no one was unfairly prejudiced.

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 by the appellant in a succession appeal from a ruling of the High Court at Kisii (R.E. Ougo, J.) dated 3rd October 2019 confirming a grant and distributing the immovable property in the estate of Mararo Songoro, deceased, between the parties. The applicant sought extension of time to file and serve his record of appeal. He had filed his notice of appeal on 17th October 2019, within the 14 days allowed by Rule 75(2), served it within the 7 days under Rule 77(1), and applied for certified proceedings on the same day in compliance with Rule 82. A certificate of delay from the Deputy Registrar certified that preparation of the proceedings ran from 17th October 2019 to 6th February 2020. The respondent opposed, arguing the proceedings were ready for collection on 17th December 2019 and that the applicant offered no explanation for the further delay until June 2020. S. Gatembu Kairu, JA, applying Fakir Mohamed v Joseph Mugambi and the Supreme Court's principles in Salat v IEBC, held that the Rule 4 discretion is unfettered but judicial, and that the delay was satisfactorily explained, taking judicial notice that court operations were scaled down during the COVID-19 pandemic. Finding no prejudice to the respondent, the judge allowed the application, extended time, deemed the appeal duly filed and served, and ordered that costs of the application be in the appeal.

Key legal issues

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01

Whether the delay in filing the record of appeal was satisfactorily explained

Holding

Yes. The applicant filed and served the notice of appeal within time and applied for proceedings promptly; the delay in lodging the record was attributable to the time taken by the court to prepare proceedings and to the COVID-19 pandemic disruption of court operations.

Reasoning

The court observed that the notice of appeal was filed within the 14-day period under Rule 75(2) and served within 7 days under Rule 77(1), and that proceedings were applied for in compliance with Rule 82. The certified period for preparation of the record ran from 17th October 2019 to 6th February 2020, and the further delay to June 2020 was explained by the pandemic. Taking judicial notice of the scaled-down court operations during COVID-19, the judge found a satisfactory explanation for the delay.

p. 2
02

The factors governing the exercise of discretion under Rule 4 of the Court of Appeal Rules

Holding

The discretion under Rule 4 is unfettered but must be exercised judicially; relevant factors include the period and reason for delay, the chances of the appeal succeeding, prejudice to the respondent, and public interest.

Reasoning

The court adopted the classic statement of Waki, JA in Fakir Mohamed v Joseph Mugambi, that the discretion under Rule 4 is unfettered and no limit exists to the number of relevant factors, and the Supreme Court's restatement in Nicholas Kiptoo Arap Korir Salat v IEBC setting out the principles: extension of time is equitable, the burden lies on the applicant, delay must be explained to the court's satisfaction, and prejudice, undue delay in bringing the application and public interest are relevant.

p. 2
03

Whether the respondent would suffer prejudice if the extension were granted

Holding

No prejudice would be suffered; justice would be served by allowing the applicant to pursue his right of appeal.

Reasoning

The judge found that the applicant had diligently filed and served his notice of appeal and applied for typed proceedings in good time, so the delay was not attributable to him. Weighing the interests of justice against the respondent's objection to the certificate of delay, the court concluded that no prejudice would flow from the extension and that granting an opportunity to pursue the appeal best served justice.

p. 2

Legal principles established

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  • Extension of time is not a right but an equitable remedy, granted at the court's discretion to a deserving party on a case-by-case basis, with the burden on the applicant to explain the delay and demonstrate absence of prejudice.

Court orders

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  1. 1.The applicant's Notice of Motion dated 29th June 2020 is allowed
  2. 2.Time extended within which to file and serve the record of appeal
  3. 3.The appeal already filed is deemed as duly filed and served
  4. 4.Costs of the application shall be in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75(2)
  • Court of Appeal RulesRule 77(1)
  • Court of Appeal RulesRule 82

Cases cited (6)

  • Fakir Mohamed vs. Joseph Mugambi & 2 others
    [2005] eKLR
  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others
    Supreme Court Application No. 16 of 2014 [2014] eKLR
  • Mutiso vs. Mwangi
    Civil Appl. NAI. 255 of 1997 (UR)
  • Mwangi vs. Kenya Airways Ltd
    [2003] KLR 486
  • Major Joseph Mwereri Igweta vs. Murika M’Ethare & Attorney General
    Civil Appl. NAI. 8/2000 (UR)
  • Murai v Wainaina (No 4)
    [1982] KLR 38
On appeal from
High Court at Kisii
Succession Cause in the estate of Mararo Songoro, deceased (number not stated)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single judge jurisdiction delegated by the full Court)

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, "Peter Nyokangi Moraro v Geoffrey Magoro Osoro & another [2020] KECA 131 (KLR)", Case Analysis (2020). Not stated in judgment (Civil Application arising from Kisii HC Succession Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/131/eng@2020-12-04

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