Hannah Muthii Kibindu v Stephen Njine Kibindu & another [2020] KECA 413 (KLR)
The bottom line
#Kenya's Court of Appeal gave an estate administrator more time to appeal an eviction judgment, ruling a one-year delay was plausibly explained.
What this practically means
#Executive summary
#Key legal issues
#Principles governing extension of time under Rule 4 of the Court of Appeal Rules
The discretion under Rule 4 is unfettered and the relevant factors - length of delay, reason for delay, possible chances of success and prejudice to the respondent - are discretionary and non-exhaustive.
Rule 4 itself does not enumerate the factors; courts have devised principles from the locus classicus Leo Sila Mutiso, as expanded in Fakir Mohammed and Muringa Company. The factors are not exhaustive so long as they are relevant, and the court must weigh the competing interests of the parties in each case to achieve a just decision.
Whether the applicant's explanation for the delay was plausible
Although the applicant had a duty to follow up her case and failed, the fact that neither she nor her erstwhile advocates were notified of the delivery of judgment, together with administrative lapses in changing counsel, amounted to plausible reasons for the delay of approximately one year and three months.
The court accepted that lack of notification of the judgment date and absence from the delivery of judgment, combined with lapses in instructing new counsel, were plausible reasons. The duty to pursue one's advocates was noted as a negative factor, but on the totality the delay was found satisfactorily explained.
Legal principles established
#- There is no maximum or minimum period of delay prescribed by law for extension of time under Rule 4; what is required is that the reason for the delay be reasonable, plausible and satisfactorily explained.
- A client cannot simply blame an advocate's inaction; the client has a duty to follow up on the litigation, and mere inaction by an advocate is not an excusable mistake attracting the court's sympathy.
- Whether an intended appeal is meritorious is not determined with finality on a Rule 4 application; the consideration of chances of success is prefixed with the word 'possibly'.
- Delay occasioned by administrative lapses in the process of changing advocates can constitute a sufficient explanation of delay.
Court orders
#- 1.The applicant shall file and serve a notice of appeal within 14 days from the date of the order
- 2.The applicant shall file and serve a record of appeal within 60 days from the date of the order
- 3.Failure to comply with the stipulated timelines, the notice of motion dated 19th September, 2018 shall stand dismissed with costs
- 4.Costs of the application to abide by the outcome of the intended appeal
- On appeal from
- Environment & Land Court
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mutuku Ngei v Julius Makenzi Mwatu (suing as the legal representative and on behalf of the Estate of Mwatu Mutue alias Mwatu Waita Nguyo (deceased) & another [2022] KEELC 816 (KLR)[2022] KEELC 816 (KLR)15 Mar 2022
- Kaakai Ene Nankoo Mosiany v Kateto Ole Kironki Miisia & 2 others [2021] KEELC 2986 (KLR)[2021] KEELC 2986 (KLR)31 May 2021
- Josephine Wambui Githinji v Peter Gachenga Kimuhu & 2 others [2020] KEELC 366 (KLR)[2020] KEELC 366 (KLR)7 Dec 2020
- Mary Wanjiku Njoroge v Esther Muthoni Karaya [2020] KEELC 426 (KLR)[2020] KEELC 426 (KLR)2 Dec 2020applied
Cite this brief
#Cite this brief
Caselaw, "Hannah Muthii Kibindu v Stephen Njine Kibindu & another [2020] KECA 413 (KLR)", Case Analysis (2020). Notice of motion dated 19th September 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/413/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.