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Court of AppealAllowedNotice of Motion dated 6th May, 2020· [2020] KECA 492 (KLR)

Omar Shurie v Marian Rashe Yafar [2020] KECA 492 (KLR)

Court of Appeal of Kenya
24 July 2020
ASAsike-Makhandia
1,690 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a late appeal, blaming the advocate's failure plus covid-19 disruption, so missed appeal deadlines can be forgiven with a good explanation.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by Asike-Makhandia, JA, delivered on 24th July 2020, on a notice of motion dated 6th May 2020 seeking extension of time to file a Notice of Appeal against a judgment of the Environment and Land Court (Cherono, J) delivered on 28th February 2020. The application, brought under Rules 4 and 75 of the Court of Appeal Rules, was supported by the applicant's affidavit and written submissions and was unopposed, the respondent having filed neither a replying affidavit nor submissions despite service. The sole issue was whether the application was deserving. The court applied the settled principles from Leo Sila Mutiso v Hellen Wangari Mwangi, as elaborated in Fakir Mohammed and Muringa Company Ltd: length of delay, reason for delay, possible chances of success, and prejudice to the respondent, emphasising that these factors are discretionary and non-exhaustive. The delay of approximately 90 days was attributed to the applicant's previous advocate, who had instructions but failed to file the Notice of Appeal, compounded by the covid-19 pandemic that closed offices and scaled down court activities. The court accepted this as a plausible reason, declined to assess the merits definitively, found no demonstrated prejudice to the unresponsive respondent, and allowed the application. The Notice of Appeal filed on 28th April 2020 was deemed filed in time, and the applicant was directed to file and serve the record of appeal within thirty days. No costs order was made. This ruling binds subordinate courts and tribunals on the exercise of discretion under Rule 4.

Key legal issues

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01

Extension of time for filing a Notice of Appeal under Rule 4

Holding

The application was allowed: the delay of about 90 days was plausibly explained by the previous advocate's failure to file the Notice of Appeal and the covid-19 disruption; the respondent, who did not respond, suffered no demonstrated prejudice.

Reasoning

Rule 4 does not enumerate factors, so the court applies the settled Mutiso parameters: length of delay, reason for delay, possible chances of success, and prejudice to the respondent. The factors are non-exhaustive. The delay was approximately 90 days, attributable to counsel's omission compounded by the pandemic court shutdowns. The mistake of counsel, while not automatically excused, was accepted as a plausible reason here; the applicant was desirous of prosecuting the appeal and the unresponsive respondent showed no prejudice.

p. 2

Legal principles established

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  • The factors for extension of time under Rule 4 are discretionary and non-exhaustive; any delay must be satisfactorily explained.
  • A single judge does not determine the merits of an intended appeal with finality when assessing chances of success.

Court orders

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  1. 1.Application allowed
  2. 2.Notice of Appeal filed on 28th April, 2020 deemed to have been filed in time
  3. 3.Applicant directed to file and serve the record of appeal within thirty (30) days from the date of the order

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75

Cases cited (10)

  • Leo Sila Mutiso v Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Fakir Mohammed v Joseph Mugambi & 2 Others
    [2005] eKLR
  • Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees
    Civil Application No. 190 of 2019
  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR
  • Bains Construction Co. Ltd v John Mzare Ogowe
    [2011] eKLR
  • Eliud Buku Thuku v Beatrice Wambui Mwangi
    [2013] eKLR
  • Njoka Muriu & Another vs Evan Githinji Muriu & Another
    Civil App. No. NAI 356 of 2003
  • Athuman Nusura Juma v Afwa Mohamed Ramadhan
    CA No. 227 of 2015
  • Wardrobe Collections v L.A. Group (pty) Ltd
    [2020] eKLR
  • National Land Commission v Salome Munubi & 4 Others
    [2020] eKLR
On appeal from
Environment and Land Court
null
Jurisdiction invoked
Rules 4 and 75 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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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Omar Shurie v Marian Rashe Yafar [2020] KECA 492 (KLR)", Case Analysis (2020). Notice of Motion dated 6th May, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/492/eng@2020-07-24

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