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Court of AppealPartially AllowedNotice of Motion dated 3rd July, 2019 (application arising from intended appeal in ELC No. 102 of 2017)· [2021] KECA 333 (KLR)

Robert Macharia Mwangi v Samuel Karichu Kamau

Court of Appeal of Kenya
17 December 2021
2,421 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal allowed a late land dispute appeal because the delay came from a change of lawyers, not negligence.

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 (Nambuye, JA) delivered at Nairobi on 17th December 2021 on a Notice of Motion dated 3rd July 2019 under Rule 4 of the Court of Appeal Rules. The applicant sought leave to appeal out of time against the whole judgment of J. G. Kemei, J. in ELC No. 102 of 2017 (Environment and Land Court, Murang'a) delivered on 29th November 2018, together with deeming orders for his notice and memorandum of appeal, stay of execution, and costs. The applicant filed his notice of appeal within fourteen days under Rule 75 and bespoke proceedings in time, but the record of appeal was not lodged within the Rule 82 period owing to a pending change-of-advocates application determined on 26th June 2019; the Rule 4 application followed within days. Applying the Salat and County Executive of Kisumu extension-of-time principles and the Patel vs. Waweru factors, the court held the delay of about seven months excusable, the intended appeal arguable (notably on res judicata), and any prejudice to the respondent outweighed by the constitutionally entrenched right to be heard. The application was allowed: leave to appeal out of time granted, the notice and memorandum of appeal deemed filed and served, sixty days allowed for filing the record of appeal, the leave to lapse in default, and costs of the application to abide the appeal. Prayer 4 (stay) was discounted as misplaced.

Key legal issues

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01

Whether the delay of about seven months from judgment (and about five months from the lapse of the Rule 82 period) was inordinate and satisfactorily explained

Holding

The delay was excusable because the applicant had filed a notice of appeal in time and the delay stemmed from an application for change of advocates over which he had no control; the application for extension was lodged 6–7 days after the change of advocates was sanctioned.

Reasoning

The court weighed the length of delay against the explanation. The applicant complied with Rule 75 timeously, and the delay arose from the pending change-of-advocates application determined on 26th June 2019; the Rule 4 application followed within days. The court found the explanation reasonable and plausible, citing Salat and Chemaringo on explanation of delay.

p. 4
02

Whether the intended appeal is arguable

Holding

The intended appeal is arguable, particularly on the res judicata ground; one arguable ground suffices.

Reasoning

The court found that whether the suit was res judicata is a question warranting interrogation and a response from the opposite party, and identified several arguable grounds, citing Mandavia and Kiriethe on the meaning of an arguable appeal.

p. 4
03

Whether the respondent would suffer prejudice if extension is granted

Holding

Any prejudice in being kept out of the fruits of judgment must be balanced against the applicant's right to be heard, which is constitutionally entrenched and foundational to the rule of law.

Reasoning

Relying on Leiyagu, Mbaki and Abbas Sherally, the court held that the right to a hearing outweighs the respondent's interest in immediate enjoyment of the judgment, especially where the res judicata issue remains uncontroverted.

p. 4

Legal principles established

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  • Extension of time under Rule 4 is not a right but an equitable remedy available to a deserving party, and the whole period of delay must be declared and satisfactorily explained
  • An arguable appeal need not be one that must succeed; one arguable ground of appeal suffices to demonstrate arguability

Court orders

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  1. 1.Leave granted to appeal out of time against the whole judgment and decree of J. G. Kemei, J. delivered on 29th November 2018 in ELC No. 102 of 2017
  2. 2.The notice of appeal and memorandum of appeal deemed properly filed and served
  3. 3.Applicant granted sixty (60) days from delivery of the ruling to file and serve a record of appeal
  4. 4.In default of filing the record within 60 days, the leave granted to lapse
  5. 5.Costs of the application to abide the outcome of the appeal
On appeal from
Environment and Land Court at Murang'a
ELC No. 102 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time), 'all other enabling provisions of the law'

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, "Robert Macharia Mwangi v Samuel Karichu Kamau", Case Analysis (2021). Notice of Motion dated 3rd July, 2019 (application arising from intended appeal in ELC No. 102 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/333/eng@2021-12-17

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