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Court of AppealAllowedCivil Application (Notice of Motion dated 3rd September 2020) arising from Malindi Environment & Land Court Case No. 119 of 2016· [2021] KECA 275 (KLR)

Mbitha v Bromine Investments Limited (Civil Application E005 of 2020) [2021] KECA 275 (KLR)

Court of Appeal of Kenya
3 December 2021
1,312 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 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

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa, delivered by P. Nyamweya, JA, sitting as a single Judge under Rule 53(1) of the Court of Appeal Rules, on a Notice of Motion dated 3rd September 2020 seeking extension of time and leave to file a Record of Appeal against the judgment of the Environment & Land Court at Malindi in Case No. 119 of 2016 delivered on 6th May 2020, which dismissed the Applicant's claim as registered proprietor of the suit property and allowed the Defendant's Counterclaim concerning unlawful amendments to maps and land records. The Respondents did not respond but argued in submissions that the application was incompetent because the 60-day period under Rule 82 had not lapsed. The court held that Rule 4 empowers extension of time before or after expiry of the relevant period, so the application was competent. Applying the Leo Sila Mutiso guidelines, it found the certified period for preparing proceedings (11th May to 9th July 2020) excluded under the proviso to Rule 82(1), leaving a material delay from 14th July to 7th September 2020 which was not inordinate and was adequately explained. The draft memorandum raised arguable issues on the legality of re-parcelling and map amendments and on res judicata, and any prejudice to the Respondent could be addressed by costs. The application was allowed: the Applicant was granted leave to file and serve the appeal within 60 days, with costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Competency of an extension-of-time application filed before expiry of the statutory period

Holding

The application is competent; Rule 4 empowers extension of time before or after expiry of the period for doing the relevant act.

Reasoning

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.

p. 3
02

Whether the delay was inordinate and excusable

Holding

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.

Reasoning

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.

p. 3
03

Arguability and prejudice

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Applicant is granted leave to file and serve his appeal within 60 days from the date of the ruling
  2. 2.The costs of the application shall abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 53(1)
  • Court of Appeal RulesRule 82(1) and proviso

Cases cited (3)

  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Vishva Stone Supplies Company Limited vs RSR Stone (2006) Limited
    Civil Application No 55 of 2020
  • David Mwecher Changwony vs James Kikech
    Civil Application No. 122 of 2020
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

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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, "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.