Mary Omollo Odongo & another v Hellen Auma Ojuok [2021] KECA 434 (KLR)
The bottom line
#Kenya's Court of Appeal let land owners appeal months late because Covid-19 court closures explained the delay and the other side showed no harm.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants satisfied the threshold for enlargement of time under Rule 4 of the Court of Appeal Rules
The application was allowed: the nine-month delay in filing the application and three-month delay in filing the notice of appeal were satisfactorily explained by the Covid-19 pandemic and closure of court registries, the respondent demonstrated no prejudice, and the intended appeal on adverse possession had possible chances of success.
The court applied the Leo Sila Mutiso four-factor test, which is discretionary and non-exhaustive. The delay was attributed to the closure of registries during the Covid-19 pandemic, supported by the Chief Justice's directive to consider granting extensions for time-bound pleadings. No replying affidavit or submissions were filed by the respondent to show prejudice, so the balance tipped in the applicants' favour. The merits of the intended adverse-possession challenge were left to the appeal court, but the applicants only needed to show possible success.
Effect of filing a notice of appeal before extension of time is granted
A notice of appeal filed before the grant of extension of time is inconsequential and can be regularised by a subsequent order extending time.
Rule 4 empowers the court to extend time for doing any act required by the rules whether before or after the doing of the act. Since the rule contemplates extension even after the act has been done, prior filing of the notice of appeal does not defeat the application; it may simply be deemed duly filed upon grant of the extension.
Legal principles established
#- Extension of time under Rule 4 is discretionary and governed by the non-exhaustive factors of length of delay, reason for delay, chances of success of the appeal, and degree of prejudice to the respondent; time may be extended even after the relevant act has been done, so a notice of appeal filed before extension of time can be regularised.
Court orders
#- 1.Extension of time granted to appeal against the judgment and decree of the Environment and Land Court delivered on 13th March 2020
- 2.The notice of appeal filed on 3rd July 2020 deemed as having been filed in time
- 3.Applicants to file and serve the memorandum and record of appeal within thirty days from the date of the ruling
- 4.Costs to abide the outcome of the intended appeal
- On appeal from
- Environment and Land Court, Kisumu
- Not stated in the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules and Sections 3B and 7 of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Maisha Mabati Mills Limited v Farm Auto Spares Limited (Civil Suit 762 of 2017) [2022] KEELC 2809 (KLR)[2022] KEELC 2809 (KLR)19 May 2022
Cite this brief
#Cite this brief
Caselaw, "Mary Omollo Odongo & another v Hellen Auma Ojuok [2021] KECA 434 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/434/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.