Simasi & another (Suing as administrators of the Estate of the late D A Vaughan Philpott) v Registrar of Lands, Mombasa & another (Civil Application E003 of 2020) [2021] KECA 474 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend appeal time where a 66-day delay lacked a credible explanation, showing Covid-19 excuses and advocate mistakes won't automatically work.
What this practically means
#Executive summary
#Key legal issues
#Factors governing extension of time under rule 4 of the Court of Appeal Rules
The single Judge exercises unfettered discretion, guided by the length of the delay, the reason for the delay, prejudice to the respondent, and possibly the arguability of the intended appeal.
The court adopted the factors in Muringa Company Limited vs. Archdiocese of Nairobi Registered Trustees. It measured the delay at 66 days against the rule 75(2) requirement to file a notice of appeal within 14 days of the ruling, and examined whether the reasons offered - advocate's mistake and Covid-19 restrictions - justified it.
Whether mistake of an advocate should be visited on the party
Whether an advocate's mistake is visited on a party depends on the circumstances of each case; here the applicants failed to disclose when they learnt of the omission, so the explanation failed.
Relying on Tana and Athi Rivers Development Authority vs. Jeremiah Kimigho Mwakio & 3 others, the court held that the circumstances of each case govern. The applicants claimed they instructed their former advocates to lodge an appeal, but never divulged when they learnt of the failure to file the notice of appeal, leaving the court unable to assess the delay attributable to them personally.
Whether Covid-19 movement restrictions excused the delay
The cessation of movement into and out of Nairobi, Mombasa and other specified counties was lifted on 7th July, 2020, before the impugned ruling of 9th July, 2020, so it could not explain the delay.
The court took judicial notice that the President first issued the movement restrictions in April 2020 and lifted them on 7th July, 2020 - two days before the ruling the applicants wished to appeal. The restrictions therefore predated the period of delay and could not found a reasonable explanation for the 66-day delay.
Legal principles established
#- An application for extension of time under rule 4 calls for the exercise of unfettered discretionary power, considering the length of the delay, the reason for the delay, prejudice to the respondent, and possibly the chances of success of the intended appeal.
Court orders
#- 1.The motion dated 21st September, 2020 and filed on 27th September, 2020 is dismissed
- 2.No order as to costs
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time), exercised by a single Judge of Appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simasi & another (Suing as administrators of the Estate of the late D A Vaughan Philpott) v Registrar of Lands, Mombasa & another (Civil Application E003 of 2020) [2021] KECA 474 (KLR)", Case Analysis (2021). Not stated in the judgment (motion dated 21st September, 2020, filed 27th September, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/474/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.