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Court of AppealAllowedNot stated in the judgment· [2021] KECA 434 (KLR)

Mary Omollo Odongo & another v Hellen Auma Ojuok [2021] KECA 434 (KLR)

Court of Appeal of Kenya
9 July 2021
1,071 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal (Asike-Makhandia JA) delivered at Nairobi on 9th July 2021 in an unopposed application under Rule 4 of the Court of Appeal Rules and Sections 3B and 7 of the Appellate Jurisdiction Act, seeking leave to appeal out of time against the judgment and decree of the Environment and Land Court at Kisumu (A.O. Ombwayo J.) delivered on 13th March 2020, in which the applicants lost the suit property Kisumu/Kakarent/1653 to the respondent by adverse possession. The notice of appeal was filed on 3rd July 2020, roughly three months out of time, and the application itself was lodged approximately nine months after judgment. The applicants, acting in person, attributed the delay to the Covid-19 pandemic and the countrywide closure of court registries, and relied on Fahim Tridha v Timamy Issa Abdalla. The respondent filed no replying affidavit or submissions. The court applied the four-factor test in Leo Sila Mutiso v Hellen Wangari Mwangi: length of delay, reason for delay, chances of success, and prejudice. Holding the test discretionary and non-exhaustive, the judge accepted the pandemic as a plausible reason, took cognizance of the then Chief Justice's directive to grant extensions for time-bound pleadings missed during the pandemic, found the adverse-possession appeal to have possible chances of success, and found no demonstrated prejudice. The application was allowed, the notice of appeal deemed filed in time, the record of appeal was to be filed and served within thirty days, and costs were made to abide the outcome of the intended appeal.

Key legal issues

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01

Whether the applicants satisfied the threshold for enlargement of time under Rule 4 of the Court of Appeal Rules

Holding

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.

Reasoning

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.

p. 2
02

Effect of filing a notice of appeal before extension of time is granted

Holding

A notice of appeal filed before the grant of extension of time is inconsequential and can be regularised by a subsequent order extending time.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Extension of time granted to appeal against the judgment and decree of the Environment and Land Court delivered on 13th March 2020
  2. 2.The notice of appeal filed on 3rd July 2020 deemed as having been filed in time
  3. 3.Applicants to file and serve the memorandum and record of appeal within thirty days from the date of the ruling
  4. 4.Costs to abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Appellate Jurisdiction ActSection 3B
  • Appellate Jurisdiction ActSection 7

Cases cited (5)

  • Fahim Tridha v Timamy Issa Abdalla & 2 others
    [2015] eKLR
  • Leo Sila Mutiso v Hellen Wangari Mwangi
    [1995] 2 EA 231
  • Fakir Mohammed Vs. Joseph Mugambi & 2 others
    [2005] eKLR
  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR
  • Athuman Nusura Juma V Afora Mohamed Ramadhan
    EA 2016 eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.