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Court of AppealAllowedApplication for extension of time under Rule 4 of the Court of Appeal Rules (E&LC Appeal No. 6 of 2014, Eldoret - ruling under appeal)· [2020] KECA 738 (KLR)

Edwin K. Too v Paul K. Sitienei [2020] KECA 738 (KLR)

Court of Appeal of Kenya
24 April 2020
PKP.O. Kiage
836 words in judgment
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The bottom line

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The Court of Appeal gave a land buyer more time to appeal because his lawyers never told him his case had been dismissed.

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 by P.O. Kiage, JA, on an application by Edwin K. Too for leave to file a notice of appeal out of time against a ruling of the Environment and Land Court at Eldoret (S.M. Kibunja, J.) delivered on 13th November 2019, which dismissed his application to set aside a consent judgment withdrawing his appeal. The applicant faced imminent eviction from two acres of land (Nandi/Aruos/1062) bought from the respondent in 2008, on which he had built permanent houses and planted tea and blue gum trees. The court criticised the drafting of the motion - it conflated the Environment and Land Court with the High Court and cited Rule 5(2)(b) instead of Rule 4, under which extension-of-time applications are handled by a single judge. Although entitled to strike the application out, the court invoked the principle of substantive justice untrammeled by procedural technicality, noting the Covid-19 pandemic's disruption, and considered the application on its merits. Accepting, in the absence of a replying affidavit or opposition, that the applicant had been let down by successive advocates and was unaware of the ruling until 3rd February 2020, and noting his prompt action thereafter and the imminent prejudice of eviction, the judge exercised his discretion in the applicant's favour. The application was allowed: notice of appeal to be filed and served within ten days and the record of appeal within forty-five days thereafter, with costs in the intended appeal. The court expressly declined to comment on the prospects of the intended appeal.

Key legal issues

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01

Whether the application should be struck out for incompetent drafting - wrong court named and wrong rule cited

Holding

The court declined to strike out despite being entitled to, choosing substantive justice over procedural technicality, while noting the carelessness of counsel.

Reasoning

The application misdescribed the Environment and Land Court as the High Court and invoked Rule 5(2)(b) instead of Rule 4. The judge observed that strict application of the rules would justify striking it out, and that this would help stem sloth and inattention at the bar. However, the imperative of substantive justice, tempered by considerations of the Covid-19 pandemic's disruption, led the court to address the substance of the motion despite its defective form.

p. 1
02

Whether the delay in filing the notice of appeal was satisfactorily explained

Holding

The explanation - that the applicant was unaware of the ruling because his advocates failed to inform him - was accepted in the absence of any replying affidavit or opposition, and the discretion was exercised in his favour.

Reasoning

The applicant showed he learned of the dismissal of his application to set aside the consent judgment only on 3rd February 2020 upon receiving notice of intended subdivision of the suit land. The court acknowledged skepticism about advocates being made convenient scapegoats but, with no controverting evidence, accepted the applicant had been let down. He moved with alacrity upon learning the truth, and imminent eviction from his home of over a dozen years established prejudice.

p. 2

Legal principles established

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  • Applications for extension of time to file a notice of appeal are brought under Rule 4 of the Court of Appeal Rules and are handled by a single judge; Rule 5(2)(b) governs applications for stay of execution or injunction pending appeal before the full Court.
  • A single judge may overlook defects in an application, including citation of the wrong rule and conflation of courts, in order to do substantive justice untrammeled by technicalities of procedure.
  • In the absence of a replying affidavit controverting a litigant's claim that his advocates failed to inform him of proceedings, the court may accept that assertion and exercise its discretion to extend time.

Court orders

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  1. 1.The application is allowed
  2. 2.The applicant shall file and serve the notice of appeal within ten (10) days of the date of the order
  3. 3.The applicant shall lodge the record of appeal within forty-five (45) days thereafter
  4. 4.Costs of the application shall be in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 5(2)(b)
On appeal from
Environment and Land Court at Eldoret
E & LC Appeal No. 6 of 2014
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time), dealt with by a single judge; the motion erroneously cited Rule 5(2)(b)

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, "Edwin K. Too v Paul K. Sitienei [2020] KECA 738 (KLR)", Case Analysis (2020). Application for extension of time under Rule 4 of the Court of Appeal Rules (E&LC Appeal No. 6 of 2014, Eldoret - ruling under appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/738/eng@2020-04-24

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