Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. E459 of 2020· [2021] KECA 630 (KLR)

Benson Nzambu & 3 others v Jedida Onduso Akanda [2021] KECA 630 (KLR)

Court of Appeal
7 May 2021
1,007 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

#

The Court of Appeal refused to forgive a two-year delay in filing an appeal, ruling that blaming your advocate without proof is no excuse in Kenya.

What this practically means

#

Executive summary

#
This is a single-judge ruling of the Court of Appeal at Nairobi on a Notice of Motion dated 18th November 2020, brought by four applicants under rules 4 and 82 of the Court of Appeal Rules, seeking extension of time to file and serve a letter requesting proceedings and a record of appeal against the judgment of the Environment and Land Court at Milimani (Gitumbi, J) delivered on 13th November 2018 in ELC Case No. 466 of 2014. The trial court had granted injunctive orders against the applicants, who were found to have trespassed on the respondent's property and constructed a house. The applicants filed a notice of appeal through Kalwa and Company Advocates but blamed their advocate for failing to request proceedings and serve the respondent. The court applied the settled Leo Sila Mutiso principles governing rule 4: length of and reason for delay, chances of success, and prejudice to the respondent. It found the two-year delay unexplained, holding that no advocate owned up to the alleged omission and that the applicants themselves went to sleep on their appeal until March 2020, displaying indolence. As no judgment or draft memorandum of appeal was attached, the chances of success could not be discerned. The respondent had already taken possession of the suit property and would suffer prejudice. The application was dismissed with costs. The decision below was not disturbed; this was an interlocutory application, not an appeal.

Key legal issues

#
01

Whether the delay of 2 years was satisfactorily explained

Holding

The delay was not explained; blaming the advocate without evidence of who was responsible, and without the applicants taking steps to follow up, amounts to indolence.

Reasoning

The applicants instructed Kalwa and Company Advocates but then took no steps for two years until 5th March 2020. No advocate owned up to the alleged omission and no individual was identified. The applicants did not demonstrate mitigation of the delay, so the court was not satisfied the delay was explained.

p. 2
02

Whether the appeal had chances of success

Holding

The court could not assess the chances of success because the applicants did not attach the judgment or a draft memorandum of appeal.

Reasoning

On the second Leo Sila Mutiso factor, the applicants failed to provide the material (judgment or draft memorandum of appeal) that would enable the court to discern the likelihood of success of the intended appeal, so the factor did not favour them.

p. 2
03

Whether the respondent would suffer prejudice

Holding

Given the inordinate 2-year delay and that the respondent had already taken possession of the suit property in compliance with the orders, she would suffer prejudice if the extension were granted.

Reasoning

The respondent deponed that the court orders had been executed and she was in occupation of the disputed premises. So much had transpired since the judgment that prejudice to the respondent could not be doubted, weighing against extension of time.

p. 2

Legal principles established

#
  • Under rule 4 of the Court of Appeal Rules the Court has an unfettered discretion to extend time, to be exercised judiciously having regard to the length of and reason for the delay, the chances of success of the appeal, and prejudice to the respondent.

Court orders

#
  1. 1.The Notice of Motion dated 18th November 2020 is dismissed with costs

Authorities

#

Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 82

Cases cited (1)

  • Leo Sila Mutiso vs Rose Hellen Wangari Mwangi
    Civil Application No. Nai 251 of 1997
On appeal from
Environment and Land Court at Milimani
ELC Case No. 466 of 2014
Jurisdiction invoked
Rules 4 and 82 of the Court of Appeal Rules (application for extension of time)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Benson Nzambu & 3 others v Jedida Onduso Akanda [2021] KECA 630 (KLR)", Case Analysis (2021). Civil Application No. E459 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/630/eng@2021-05-07

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