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Court of AppealAllowedNotice of Motion dated 7th February 2020 (Civil Appeal No. 13 of 2020, Nakuru)· [2020] KECA 360 (KLR)

David Kamau Kariuki v Stanley Theuri & 2 others [2020] KECA 360 (KLR)

Court of Appeal of Kenya
7 August 2020
4,214 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal excused a late service of a notice of appeal, ruling that the Christmas holiday period doesn't count when computing filing delays.

What this practically means

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Executive summary

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This is a single-judge decision of the Court of Appeal (Nambuye, JA) on a notice of motion dated 7th February 2020 brought under Rules 4, 75 and 77 of the Court of Appeal Rules, 2020. The applicant, who lost an ex parte judgment in ELC Case No. 440 of 2017 at Nyahururu (with a review ruling delivered on 3rd December 2019), filed a notice of appeal timeously on 5th December 2019 but served it on the 1st respondent's advocates on 24th January 2020, outside the seven-day period prescribed by Rule 77. He sought enlargement of time to validate that service. The sole issue was whether the applicant had met the prerequisites for relief under Rule 4. The court distilled the settled principles from the Rule 4 case law, including the Supreme Court's restatement in Nicholas Kiptoo Arap Korir Salat. It found the 43-day delay not inordinate: the period from 20th December to 13th January is excluded under Order 50 rule 4 of the Civil Procedure Rules, reducing the effective delay to 19 days, and the explanation - the 12th December public holiday and the customary closure of advocates' offices over Christmas - was plausible. The thirteen draft grounds, chiefly the applicant's adverse possession claim after decades on the disputed six acres, were held arguable, and the respondent was found to suffer no prejudice incapable of compensation by costs, eviction having already been effected. The application was allowed: the notice of appeal was deemed properly filed and served, with costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Whether the delay of 43 days in serving the notice of appeal was inordinate and unexcused

Holding

The delay was not inordinate; the Christmas holidays period (20th December to 13th January) is excluded from computation under Order 50 rule 4 CPR, reducing the effective delay to 19 days, and a plausible explanation was given.

Reasoning

The court held that the period 20th December to 13th January is excluded from computation of timelines by virtue of Order 50 rule 4 of the Civil Procedure Rules. Discounting that period, the 43-day delay reduces to 19 days, which is not inordinate. The explanation - the public holiday of 12th December and the customary closure of advocates' offices over Christmas - was accepted as plausible and satisfactory.

p. 4
02

Whether the intended appeal is arguable

Holding

The thirteen grounds in the draft memorandum, including adverse possession after over thirty-seven years of occupation and the failure to pin responsibility on the former advocate, raise bona fide arguable issues.

Reasoning

The court perused the draft memorandum of appeal raising thirteen grounds, including the failure to consider the applicant's claim of adverse possession after decades on the land and the land registrar's prior finding on the six-acre disputed portion. The respondent's acknowledgement that the applicants had been on the disputed portion until recently evicted demonstrated bona fide issues, notwithstanding that they may not ultimately succeed.

p. 5
03

Whether prejudice would be suffered by the respondent

Holding

No prejudice incapable of compensation by way of costs would be suffered by the respondent, particularly since eviction had already been effected and the appeal record had been filed and served.

Reasoning

The court balanced the injustice to the applicant in denying an extension against the prejudice to the respondent in granting one. Since the eviction had already been effected as asserted by the respondent, and the appeal record was already filed and served, the respondent stood to suffer no prejudice incapable of compensation by way of costs. The applicant's constitutionally underpinned right to be heard weighed in favour of granting the extension.

p. 5

Legal principles established

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  • The discretion to extend time under Rule 4 is wide and unfettered, to be exercised judicially; delay must be satisfactorily explained and the key factors are length of and reason for delay, arguability of the appeal and prejudice to the respondent.
  • A plausible and satisfactory explanation for delay is the key that unlocks the court's discretionary power under Rule 4.
  • An arguable appeal need not be one that must succeed but one raising a bona fide issue for interrogation by the Court.

Court orders

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  1. 1.The notice of appeal dated 5th December 2019 already filed be and is hereby deemed as properly filed and served
  2. 2.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75(1) and (2)
  • Court of Appeal RulesRule 77(1)
  • Court of Appeal RulesRules 84 and 97
  • Civil Procedure RulesOrder 50 rule 4

Cases cited (20)

  • Attorney General vs. Zinj Limited
    [2020] eKLR
  • Fillippo Fedriri vs. Ibrahim Mohamed Omari
    [2006] eKLR
  • Mbogu Gatuiku vs. Attorney General
    HCCC No. 1983 of 1980
  • Rajesh Rughani vs. Fifty Investment Limited & Another
    [2005] eKLR
  • Bains Construction Company Limited vs. John Mzare Ogowe
    [2011] eKLR
  • Fakir Mohammed vs. Joseph Mugambi & 2 Others
    [2005] eKLR
  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Muringa Company Ltd vs. Archdiocese of Nairobi Registered Trustees
    [2020] eKLR
  • Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet
    [2018] eKLR
  • Athuman Nusura Juma vs. Afwa Mohamed Ramathan
    CA No. 227 of 2015
  • Edith Gichugu Koine vs. Stephen Njagi Thoithi
    [2014] eKLR
  • Nyaigwa Farmers’ Co-operative Society Limited vs. Ibrahim Nyambare & 3 Others
    [2016] eKLR
  • Hon. John Njoroge Michuki & Another vs. Kentazuga Hardware Limited
    [1998] eKLR
  • Cargil Kenya Limited Nawal vs. National Agricultural Export Development Board
    [2015] eKLR
  • Paul Wanjohi Mathenge vs. Duncan Gichane Mathenge
    [2013] eKLR
  • Richard Nchapi Leiyagu vs. IEBC & 2 Others
    Civil Appeal No. 18 of 2013
  • Nicholas Kiptoo Arap Korir Salat versus Independent Electoral and Boundaries Commission & 7 others
  • George Mwende Muthoni vs. Mama Day Nursing and Primary School Nyeri
    CA No. 4 of 2014 (UR)
  • Mbaki & Others vs. Macharia & Another
    [2005] 2 EA 206
  • Abbas Sherally & Another vs. Abdul Fazaiboy
    Civil Application No. 33 of 2003
On appeal from
Environment and Land Court (ELC) at Nyahururu
ELCC No. 440 of 2017
Jurisdiction invoked
Rules 4, 75 and 77 of the Court of Appeal Rules, 2020

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, "David Kamau Kariuki v Stanley Theuri & 2 others [2020] KECA 360 (KLR)", Case Analysis (2020). Notice of Motion dated 7th February 2020 (Civil Appeal No. 13 of 2020, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/360/eng@2020-08-07

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