Mbitha v Bromine Investments Limited (Civil Application E005 of 2020) [2021] KECA 275 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you can apply for extra time to appeal before your deadline even expires, and it granted a landowner 60 more days to file his appeal.
What this practically means
#Executive summary
#Key legal issues
#Competency of an extension-of-time application filed before expiry of the statutory period
The application is competent; Rule 4 empowers extension of time before or after expiry of the period for doing the relevant act.
The Respondents argued the application was incompetent because the 60-day period under Rule 82 had not lapsed. The court rejected this, holding that nothing prevents an applicant from seeking an extension out of abundance of caution before the timeline expires, since Rule 4 expressly covers extensions before or after expiry.
Whether the delay was inordinate and excusable
The material period ran from receipt of proceedings on 14th July 2020 to filing of the application on 7th September 2020; there was no inordinate delay and the Applicant adequately explained it.
The certified preparation period (11th May to 9th July 2020) is excluded under the proviso to Rule 82. The Applicant applied for proceedings promptly, received them on 14th July 2020, and filed the application within the remaining time, acting out of abundance of caution to prepare the record.
Arguability and prejudice
The draft memorandum raises arguable issues on the legality of re-parcelling and amendment of maps and the application of res judicata; any prejudice to the Respondent is compensable in costs.
The court perused the draft memorandum of appeal and found issues requiring consideration regarding the legality of re-parcelling and map amendments and res judicata. The Respondent's entitlement to the fruits of judgment was balanced against the Applicant's right of appeal, with prejudice addressed through costs.
Legal principles established
#- The Court's discretion under Rule 4 to extend time is wide and unfettered but must be exercised judiciously in accordance with the Leo Sila Mutiso guidelines: length of delay, reason for delay, chances of the appeal succeeding, and degree of prejudice to the respondent.
- There is no bar to filing an application for extension of time before the expiry of the timeline for lodging an appeal; Rule 4 empowers the Court to grant extension before or after expiry of the relevant period.
- Under the proviso to Rule 82(1) of the Court of Appeal Rules, time certified by the registrar as required for the preparation and delivery of proceedings is excluded from the 60-day timeline for instituting the appeal.
- Where a delay is explained and no prejudice is demonstrated, any prejudice to the respondent can adequately be addressed by way of costs.
Court orders
#- 1.The Applicant is granted leave to file and serve his appeal within 60 days from the date of the ruling
- 2.The costs of the application shall abide the outcome of the appeal
- On appeal from
- Environment & Land Court, Malindi
- Malindi Environment & Land Court Case No. 119 of 2016
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, exercisable by a single Judge under Rule 53(1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbitha v Bromine Investments Limited (Civil Application E005 of 2020) [2021] KECA 275 (KLR)", Case Analysis (2021). Civil Application (Notice of Motion dated 3rd September 2020) arising from Malindi Environment & Land Court Case No. 119 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/275/eng@2021-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.