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Court of AppealAllowedNyeri Civil Application No. 78 of 2017

Catholic Diocese of Meru Gatunga Catholic Mission v Ndume Ntuiru & 53 others [2020] KECA 180 (KLR)

Court of Appeal of Kenya
20 November 2020
RNR. N. Nambuye
1,202 words in judgment
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The bottom line

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The Court of Appeal allowed a nine-year delay in filing an appeal because the disputed land houses public utilities serving the wider community.

What this practically means

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Executive summary

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This was a single-judge (in chambers) ruling of the Court of Appeal at Nairobi, delivered by Nambuye, JA on 20th November 2020, on a Notice of Motion dated 11th July 2017 brought under Rule 4 of the Court of Appeal Rules, 2010 by the Catholic Diocese of Meru, Gatunga Catholic Mission. The applicant sought an extension of time to file and serve the record of appeal from a ruling of the High Court (Lenaola, J) dated 28th January 2008 in Meru HCC No. 235 of 1992, attributing the failure to progress the appeal to its former advocates, who had timeously filed the notice of appeal. The respondents opposed, alleging laches and inordinate delay of about nine years since the notice of appeal, pointing to a consent judgment of Sitati, J of 27th July 2005 that had long been implemented, the deaths of some respondents, doubts about service, and the absence of an arguable appeal. The Court applied the Rule 4 principles as restated in Martin Njiru v Attorney General and Vishva Stone Suppliers Co Ltd v RSR Stone [2006] Ltd, holding that the discretion must be exercised judiciously and in the interests of justice. Although the Court noted the absence of any letter instructing the former advocate or affidavit from that advocate confirming the allegation, it was persuaded by the uncontroverted position that the disputed land houses public utilities - Mukothima Girls Secondary School, Mukothima Health Centre and Mukothima Water Project - taking the dispute beyond the immediate contestants. The application was allowed as prayed, with costs evidently in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted an extension of time to file and serve the record of appeal out of time
  2. 2.Whether the inordinate delay of about nine years has been sufficiently explained
  3. 3.Whether the interests of justice favour the exercise of the Court's discretion in favour of the applicant

Key legal issues

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01

Exercise of discretion under Rule 4 to extend time for filing the record of appeal

Holding

The Court allowed the extension despite the delay, taking into account that the disputed land houses public utilities and that crystallizing the controversy on appeal serves the interests of justice.

Reasoning

The Court adopted the guiding principles in the authorities relied upon, noting the delay of about nine years and the absence of any letter instructing the former advocate or an affidavit from that advocate confirming the allegation of advocate inaction. Nevertheless, the uncontroverted assertion that the land in dispute houses public utilities took the matter beyond the real contestants, and the interests of justice demanded that the issues in controversy be crystallized on appeal.

p. 2

Legal principles established

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  • An application for extension of time is discretionary, but the discretion must be exercised judiciously with reason and in the best interests of justice to the parties before the Court.

Court orders

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  1. 1.The applicant's application dated 11th July 2017 be and is hereby allowed as prayed

The bench

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

RN
majority

Wrote the judgment

On appeal from
High Court of Kenya
Meru HCC No. 235 of 1992
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010

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.

The applicant’s application dated 11th July 2017 be and is hereby allowed as prayed.
p. 2Final orders - extension of time granted
the invitation to intervene on behalf of an applicant in an application of this nature is purely discretionary but which discretion must be exercised judiciously with reason and in the best interests of justice to the parties before Court
p. 2Judicious exercise of discretion under Rule 4
the dispute I have been confronted with herein therefore, transends beyond the real contestants herein
p. 2Public interest in land housing public utilities

Issues in the judgment

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minor

The heading refers to a ruling of Hon. I. Lenaola, J dated 28th January 2008, while the replying affidavit also refers to a consent judgment entered by Hon. Lady Justice Ruth Sitati dated 27th July 2005 said to result from the intended impugned ruling; the relationship between the two decisions is not clarified in the ruling.

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, "Catholic Diocese of Meru Gatunga Catholic Mission v Ndume Ntuiru & 53 others [2020] KECA 180 (KLR)", Case Analysis (2020). Nyeri Civil Application No. 78 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/180/eng@2020-11-20

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