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Court of AppealAllowedCivil Application (Extension of Time) arising from Eldoret High Court Divorce Case No. 3 of 2019· [2021] KECA 67 (KLR)

CMM v MN (Civil Application E074 of 2021) [2021] KECA 67 (KLR)

Court of Appeal of Kenya
8 October 2021
JLJ. Lesiit
710 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed a party to file an appeal 28 days late because COVID-19 disrupted court notifications.

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 (Lesiit, JA) on a motion under Rule 4 of the Court of Appeal Rules seeking an extension of time to lodge a notice of appeal against a ruling delivered by Githinji, J in Eldoret High Court Divorce Case No. 3 of 2019 on 30th April 2020. The applicant sought dispensation of service, leave to appeal out of time, and validation of a notice of appeal dated 6th April 2021 that was lodged on 7th April 2021 and served on 30th April 2021. The application was filed on 11th June 2021, approximately 28 days out of time. The judge restated the settled principles governing Rule 4: the discretion is unfettered but must be exercised judiciously, taking into account the length of the delay, the reason for it, the chances of the appeal succeeding, and the prejudice to the respondent. The applicant explained that the ruling was delivered virtually during the COVID-19 pandemic, when court access was scaled down, and that neither he nor his counsel, whose email address had not been given to the court, received notice of the delivery date. Neither party filed submissions despite directions. The court found the delay not inordinate and the reasons reasonable, and allowed the application, directing the applicant to file and serve the notice of appeal and memorandum of appeal within 14 days, with costs to abide the outcome of the appeal. The decision is interlocutory and discretionary; it affirms the application of the Leo Sila Mutiso guidelines to pandemic-related delays in receiving notice of virtual rulings.

Key legal issues

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Extension of time to lodge a notice of appeal under Rule 4

Holding

The court has an unfettered but judiciously-exercisable discretion; on the facts the 28-day delay was not inordinate and the reasons (virtual delivery of the ruling during the COVID-19 pandemic and lack of notice to counsel) were reasonable.

Reasoning

The court restated the settled test from Leo Sila Mutiso: length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent. It found the ruling was delivered virtually during the COVID-19 pandemic when access to court was scaled down, and neither the applicant nor counsel received notice of the delivery date, explaining the 28-day delay. Balancing the factors, the court concluded the application had merit and allowed it.

p. 2

Legal principles established

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  • The discretion under Rule 4 is unfettered but must be exercised judiciously, guided by the length of and reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

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  1. 1.Service of the application dispensed with in the first instance (sought)
  2. 2.Leave granted to appeal out of time
  3. 3.Applicant to file and serve the notice of appeal and memorandum of appeal within 14 days from the date of the ruling
  4. 4.Notice of Appeal dated 6.04.2021 deemed duly served upon grant of extension (sought)
  5. 5.Costs to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (2)

  • Kagai Watakia vs. Ngatia Kareko
    Civil Application No. Nai. 77 of 2005
  • Leo Sila Mutiso Rose Hellen Wangari Mwangi
    Civil Application No. Nai 251 of 1997
On appeal from
High Court of Kenya at Eldoret
Divorce Case No. 3 of 2019
Jurisdiction invoked
Rule 4 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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Cite this brief

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Cite this brief

Caselaw, "CMM v MN (Civil Application E074 of 2021) [2021] KECA 67 (KLR)", Case Analysis (2021). Civil Application (Extension of Time) arising from Eldoret High Court Divorce Case No. 3 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/67/eng@2021-10-08

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