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Court of AppealDismissedCivil Application E010 of 2021· [2021] KECA 29 (KLR)

LWL alias LWJ v SANL (Civil Application E010 of 2021) [2021] KECA 29 (KLR)

Court of Appeal
23 September 2021
1,556 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to revive a delayed appeal because a roughly two-and-a-half-year delay was not convincingly explained and the other side would be prejudiced.

What this practically means

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Executive summary

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This was a single-judge application in the Court of Appeal at Nairobi under rules 4, 5(2)(b) and 82 of the Court of Appeal Rules, 2010 and section 71A of the Civil Procedure Act, in which the applicant sought leave to file the record of appeal out of time against a ruling of Onyiego, J. delivered on 27th July 2018 in matrimonial property proceedings. The parties, formerly husband and wife, had recorded a consent on 21st January 2015 dividing matrimonial property; the applicant's later attempt to set aside the consent was dismissed by the trial court. The applicant attributed the delay of about 910 days to illness and to the failure of her former advocate, Job Kimeru, to act on her instructions. The respondent opposed, contending the delay was unexplained, the alleged instruction note was incoherent and dated over a year after the ruling, and that she had already transferred most assets to the applicant pursuant to the consent. Applying the settled Leo Sila Mutiso principles - length of delay, reason for delay, arguability, and prejudice - the court found the delay inordinate and unexplained: the medical reports did not show incapacitation, and the burden of proving incapacity was not discharged. The court declined to determine the merits of the intended appeal, holding that this is for the full court, but found the respondent would suffer prejudice given the transfers and trial court directions on the Kitui property. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the delay of about 910 days was sufficiently explained

Holding

The delay was inordinate and not explained; medical reports did not show the applicant was incapacitated, and the alleged instruction letter was incoherent and dated over a year after the ruling.

Reasoning

The court examined the two medical reports and found they did not show admission to hospital, being bedridden, or incapacity preventing pursuit of the appeal. The handwritten note relied on as an instruction to the former advocate was incoherent, did not amount to an instruction letter, and was dated 25th September 2019, more than a year after the ruling. As the applicant was herself an advocate, she ought to have known the timelines.

p. 3
02

Whether the respondent would suffer prejudice if the application was granted

Holding

The respondent would suffer prejudice because assets had already been transferred pursuant to the consent and the trial court had given directions on the Kitui property.

Reasoning

Arising from the consent, the respondent had transferred most of the assets to the applicant, which the applicant confirmed before the trial court. The respondent alleged the applicant refused to execute transfer documents in his favour. Viewed against the trial court's directions on the Kitui property and the inordinate delay, the court found prejudice would ensue if the belated application was granted.

p. 3
03

Whether the intended appeal is arguable

Holding

The court declined to determine the merits definitively at this stage; that is the duty of the full court.

Reasoning

The court held that on an extension-of-time application it is not the role of a single judge to definitively determine the merits of an intended appeal. That determination belongs to the full court when the appeal is ultimately presented. The applicant nonetheless needed to demonstrate the parameters set out in Leo Sila Mutiso, which she failed to do.

p. 3

Legal principles established

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  • In an application for extension of time under rule 4, the court considers the length of the delay, the reason for the delay, the chances of success of the intended appeal, and the degree of prejudice to the respondent.
  • The burden of proving incapacity as a reason for delay lies on the applicant seeking extension of time.

Court orders

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  1. 1.The Notice of Motion dated 18th January 2021 seeking leave to file the record of appeal out of time was dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 5(2)(b)
  • Court of Appeal Rules, 2010Rule 82
  • Civil Procedure ActSection 71A(d), (h)

Cases cited (5)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
  • Fakir Mohammed v Joseph Mugambi & 2 Other
  • Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees
  • Njuguna v Magichu & 73 Others
  • Athuman Nusura Juma v Afwa Mohamed Ramadhan
On appeal from
High Court of Kenya
Not stated in judgment
Jurisdiction invoked
Rules 4, 5(2)(b) and 82 of the Court of Appeal Rules, 2010; section 71A(d), (h) of the Civil Procedure Act

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, "LWL alias LWJ v SANL (Civil Application E010 of 2021) [2021] KECA 29 (KLR)", Case Analysis (2021). Civil Application E010 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/29/eng@2021-09-23

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