Makasa Kithu v Sedrick Musyoka & 1 other
The bottom line
#Kenya's Court of Appeal let a litigant file his appeal late because Covid-19 court closures, not negligence, caused the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated grounds for extension of time to file the record of appeal out of time
The application was allowed; the applicant filed a timely notice of appeal, and the delay in filing the record was occasioned by the Covid-19 pandemic and containment measures that scaled down court activities.
The court applied the well-established Rule 4 parameters from Leo Sila Mutiso: length of delay, reason for delay, arguability of the appeal, and prejudice. It accepted that the applicant's counsel was turned away by the registry owing to Covid-19 containment measures before electronic filing was rolled out, that the appeal was arguable, and that it would be wrong to shut the applicant out of court where his conduct was excusable and no prejudice to the respondent was shown.
Legal principles established
#- The discretion to extend time under Rule 4 of the Court of Appeal Rules is unfettered and governed by non-exhaustive factors including length of delay, reason for delay, chances of success, and prejudice to the respondent.
- There is no maximum or minimum period of delay set out under the law, but the reason for the delay must be reasonable and plausible.
Court orders
#- 1.Leave granted to the applicant to file and serve a record of appeal out of time against the judgment and decree of the High Court of Kenya at Kitui (Kariuki, J.) dated 17th January 2020 in HCCC No. 27 of 2018
- 2.The record of appeal to be filed and served within thirty (30) days from the date of the order
- 3.Costs of the application to abide by the outcome of the intended appeal
- On appeal from
- High Court of Kenya at Kitui
- HCCC No. 27 of 2018
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, Article 159 of the Constitution, and Sections 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makasa Kithu v Sedrick Musyoka & 1 other", Case Analysis (2021). Notice of Motion dated 7th July 2020 (Civil Appeal No. 27 of 2018, High Court of Kenya at Kitui). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/174/eng@2021-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.