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Court of AppealDismissedCivil Application (motion dated 6th December, 2019)

Kuti v Gachanja Muhoro & Sons Ltd (Civil Appeal (Application) 549 of 2019) [2021] KECA 416 (KLR)

Court of Appeal of Kenya
9 July 2021
Martha Karambu KoomeM. K. Koome
1,081 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to forgive a nearly three-month late appeal filing because parts of the delay went unexplained.

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 at Nairobi, delivered by Koome, JA, on an application for extension of time under rule 4 of the Court of Appeal Rules. The dispute originates in a tenancy agreement dated 12th March, 2012 over premises on LR No. 11800/93/11, under which the applicant leased to the respondent at Kshs. 300,000 per month. A rent dispute led to distress for arrears exceeding Kshs. 3,000,000 by proclamation dated 13th April, 2013. The respondent sued in the Chief Magistrate's Court challenging the proclamation; the subordinate court nevertheless entered what the High Court later found to be an irregular judgment on the basis of an interlocutory application. On appeal, Kemei, J. allowed HCCA No. 52 of 2016 by judgment dated 7th November, 2018, setting aside the attachment of the respondent's property (including motor vehicle KXH O92) and directing the suit be heard. The applicant filed a notice of appeal on 19th November, 2018 but lodged the record of appeal on 13th November, 2019, some 2 months and 22 days late, blaming rejection of an earlier filing attempt and the delayed extraction of the decree. The court found unexplained gaps in the delay, including over two months after the draft decree was sent for approval on 28th August, 2019, doubted the appeal's arguability, and dismissed the motion with no orders as to costs. The High Court judgment was not disturbed; the intended appeal was not admitted.

Key legal issues

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01

Whether the reason advanced for the delay was reasonable

Holding

The delay of 2 months and 22 days was inordinate because even giving the applicant benefit of doubt, 4 days were unexplained, and no explanation was given for the over two months between sending the draft decree for approval on 28th August, 2019 and filing the record on 13th November, 2019.

Reasoning

The court computed the filing deadline as 19th August, 2019 using the proviso to rule 82(1) and the certificate of delay. It found the applicant's explanation for the attempted filing of 23rd August, 2019 and the subsequent gap until 13th November, 2019 unconvincing, and therefore declined to exercise its discretion in the applicant's favour.

p. 3
02

Arguability of the intended appeal

Holding

The court doubted the arguability of the appeal, while acknowledging it was not determining the merits.

Reasoning

The single judge noted that although it was not her place to determine the merits of the appeal, she had doubts as to whether it was arguable, which weighed against extending time. No response or submissions were filed by the respondent despite service.

p. 3

Legal principles established

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  • In an application for extension of time, the court considers the length of the delay, the reason for the delay, the prejudice to the respondent, and possibly the chances of success of the appeal.

Court orders

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  1. 1.The motion dated 6th December, 2019 is dismissed
  2. 2.No orders as to costs - each party implicitly to bear own costs ('dismissed with no orders as to costs')
On appeal from
High Court of Kenya
HCCA No. 52 of 2016
Jurisdiction invoked
rule 4 of the Court of Appeal Rules (extension of time)

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, "Kuti v Gachanja Muhoro & Sons Ltd (Civil Appeal (Application) 549 of 2019) [2021] KECA 416 (KLR)", Case Analysis (2021). Civil Application (motion dated 6th December, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/416/eng@2021-07-09

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