David Kamau Kariuki v Stanley Theuri & 2 others [2020] KECA 360 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the delay of 43 days in serving the notice of appeal was inordinate and unexcused
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.
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.
Whether the intended appeal is arguable
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.
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.
Whether prejudice would be suffered by the respondent
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.
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.
Legal principles established
#- 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
#- 1.The notice of appeal dated 5th December 2019 already filed be and is hereby deemed as properly filed and served
- 2.Costs of the application to abide the outcome of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.