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Court of AppealAllowedNot stated in the judgment· [2020] KECA 170 (KLR)

Pius Musimba Muasya & 15 others v Onesmus Ndolo Ngeta & 3 others [2020] KECA 170 (KLR)

Court of Appeal of Kenya
20 November 2020
977 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed landowners extra time to appeal because they missed the deadline without being told judgment had been delivered, protecting their right to appeal before eviction.

What this practically means

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Executive summary

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This was an application under rule 4 of the Court of Appeal Rules, sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(b) of the Constitution for leave to file an appeal out of time and for deeming of a notice of appeal. The applicants had sued in ELC Case No. 4 of 2014 at Machakos, claiming ownership by prescription of land parcel Kangundo/Kitwii/1313 before Angote, J., whose judgment delivered on 13th April 2018 without notice to the parties dismissed the suit. They filed a notice of appeal on 11th June 2018, obtained certified proceedings on 7th February 2019 and filed the extension application 21 days later. The respondents opposed, citing delay of 11 months and 13 days from judgment and asserting the intended appeal had no chance of success and would prejudice their plans to utilise the land. Musinga, JA applied the settled rule 4 principles: the period and reason for the delay, the chances of the appeal succeeding, and prejudice to the respondent. He held the delay was not inordinate in the circumstances, the appeal was arguable, and the respondents would suffer no incurable prejudice beyond a short wait. Noting that litigants in land disputes should not be evicted before exhausting the appellate process, he granted leave to file the appeal out of time, deemed the notice of appeal filed on 11th June 2018 as filed and served in time, directed that the record of appeal be filed and served within thirty days, and ordered that the costs of the application be in the appeal.

Key legal issues

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01

Whether the delay in bringing the extension application was inordinate

Holding

Although there was some delay after issuance of the Certificate of Delay, in the circumstances of the case it was not inordinate.

Reasoning

Judgment was delivered without notice to the parties on 13th April 2018. The applicants learned of it towards the end of May 2018, applied for typed proceedings on 29th May 2018 and filed a notice of appeal on 11th June 2018. Certified copies were ready and collected on 7th February 2019, and the application was filed 21 days later. Given this chronology, the delay was not inordinate.

p. 2
02

Whether the intended appeal is arguable

Holding

The appeal is arguable; it is not frivolous and merits full consideration by the Court.

Reasoning

The judge perused the impugned judgment and the Draft Memorandum of Appeal and found the appeal arguable, applying the settled principle that an arguable appeal need not be one that must succeed, only one that is not frivolous and merits full consideration.

p. 2
03

Prejudice to the respondents versus the applicants' right of appeal

Holding

The respondents would not suffer incurable prejudice, while denial of the orders would deprive the applicants of their constitutional right of appeal and lead to their eviction.

Reasoning

The respondents, having been declared lawful owners, are keen to evict the applicants and would only have to wait a little longer. The applicants, if refused, would be evicted and unable to exercise their constitutional right of appeal. Litigants in land disputes should not be evicted before exhausting the appellate process.

p. 2

Legal principles established

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  • In a rule 4 extension-of-time application, the Court exercises unfettered discretion considering the period of delay, the reason for the delay, the chances of the appeal succeeding and the degree of prejudice to the respondent.
  • An arguable appeal is one that is not frivolous and merits full consideration, not one that must succeed.

Court orders

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  1. 1.Leave granted to the applicants to file an appeal out of time
  2. 2.The notice of appeal filed on 11th June 2018 deemed as having been filed and served in time
  3. 3.The record of appeal to be filed and served within thirty (30) days from the date of the ruling
  4. 4.Costs of the application to be in the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(b)
  • Appellate Jurisdiction Actsections 3A and 3B
  • Court of Appeal Rulesrule 4

Cases cited (2)

  • Mwangi v Kenya Airways Ltd
    [2003] KLR 486
  • Stanley Kang'ethe Kinyanjui V Tony Ketter & 5 Others
    [2013] eKLR
On appeal from
Environment and Land Court, Machakos Law Courts
ELC Case No. 4 of 2014
Jurisdiction invoked
Article 159(2)(b) of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act and rule 4 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, "Pius Musimba Muasya & 15 others v Onesmus Ndolo Ngeta & 3 others [2020] KECA 170 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/170/eng@2020-11-20

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