Samwel Mwangi Kanyari v Mathew Wacha Nyongesa (Civil Application 80 of 2020) [2021] KECA 395 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time to appeal because the lawyer's delay was unexplained and the judgment had already been fully executed.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the notice of appeal was satisfactorily explained
The delay was not satisfactorily explained. The applicant's advocate claimed ignorance of the judgment and COVID-19 office closure, but the Court demonstrated that a copy of the judgment had been emailed to the parties' advocates on the day of delivery, and no sufficient explanation covered the period thereafter to the filing of the application.
The judgment was delivered on 15th April 2020 and emailed to counsel the same day. The applicant's advocate claimed he learnt of it only on 10th June 2020 and filed the application on 16th July 2020, an unexplained lapse. The claim that counsel did not access his email, and reliance on COVID-19 scaled-down operations, did not constitute a plausible and satisfactory explanation for the delay.
Whether the respondent would suffer prejudice if extension were granted
The respondent would suffer prejudice because the decree issued by the ELC had already been executed in full, a fact demonstrated by a court order dated 7th December, 2020 and not controverted by the applicant.
The respondent showed, via an uncontroverted court order, that the decree of the ELC had been fully executed. The applicant had not sought a stay of execution. Granting extension of time at that stage would therefore prejudice the respondent who had already enjoyed the fruits of the judgment.
Whether the intended appeal's chances of success favour extension of time
The chances of success is only a 'possible' consideration; a single judge must not determine the merits of the intended appeal with finality when exercising the extension-of-time discretion.
Relying on Athuman Nusura Juma v Afwa Mohamed Ramadhan, the Court noted that the consideration whether an intended appeal has chances of success is prefixed with the word 'possibly' precisely because a single judge should not conclusively determine the merits at this interlocutory stage.
Legal principles established
#- In an application for extension of time, the most critical consideration is the explanation for the delay; even a one-day delay must be dismissed if unexplained, while long delays may be excused where a plausible explanation exists.
- The court, when assessing the possible chances of success of an intended appeal on an extension-of-time application, must not delve into the merits of the intended appeal.
- Delay in filing a notice of appeal must be satisfactorily explained; failure to act promptly once aware of a judgment militates against the overriding objective.
Court orders
#- 1.The prayer to extend time to file the Notice of Appeal is declined
- 2.The Notice of Motion dated 16th July, 2020 is dismissed with costs
- On appeal from
- Environment and Land Court (ELC) at Busia
- null
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act; Rules 4 and 42 of the Court of Appeal Rules; Articles 50 and 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samwel Mwangi Kanyari v Mathew Wacha Nyongesa (Civil Application 80 of 2020) [2021] KECA 395 (KLR)", Case Analysis (2021). Notice of Motion dated 16th July, 2020 (application for extension of time to file Notice of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/395/eng@2021-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.