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Court of AppealAllowedCivil Application No. 325 of 2018

James Lenges v Attorney General & 11 others [2021] KECA 782 (KLR)

Court of Appeal
19 March 2021
RNR. N. Nambuye
1,643 words in judgment
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The bottom line

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Kenya's Court of Appeal gave an elderly landowner more time to appeal, confirming courts can excuse delays when properly explained and the appeal has merit.

What this practically means

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Executive summary

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This is a single-judge chambers ruling of the Court of Appeal at Nairobi (Nambuye, J.A.) on an unopposed Notice of Motion dated 9th November 2018 under Rule 4 of the Court of Appeal Rules, seeking extension of time to file an appeal against the ruling and orders of Okong'o, J. of the Environment and Land Court in Nairobi ELC No. 2918 of 1997, a land dispute over 155 acres in parcel Poro 'B' 30 in which the applicant claimed sole proprietorship and challenged a second adjudication. The applicant filed a notice of appeal timeously on 9th November 2016 with a letter bespeaking proceedings, but was only supplied with certified copies on 5th February 2018 and a certificate of delay on 8th March 2018. Applying the crystallized Salat principles - length and explanation of delay, arguability, and prejudice - the court discounted the period up to the certificate of delay, found the remaining eight-month delay explained by advocate-client communication challenges and the applicant's advanced age, held that the absence of a draft memorandum of appeal was not fatal since one bona fide ground suffices, and found no prejudice to the unresponsive respondents. The application was allowed as prayed, with costs to abide the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has met the crystallized principles for extension of time to file an appeal out of time, namely the length of and reasons for the delay, arguability of the intended appeal, and prejudice to the opposite party

Key legal issues

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01

Whether the delay in filing the record of appeal was inordinate and excusable

Holding

The period between lodging the notice of appeal and issuance of the certificate of delay is discounted; the remaining eight-month delay, explained by advocate-client communication difficulties, was not inordinate and was excusable.

Reasoning

The applicant timeously filed a notice of appeal and a letter bespeaking proceedings, which was served on the opposite party. The proviso to Rule 82(1) accords reprieve where a certificate of delay is obtained, which occurred on 8th March 2018. Time therefore ran afresh from that date, giving an eight-month delay, which the court found plausibly explained by communication challenges between advocate and client and the applicant's advanced age.

p. 2
02

Whether the intended appeal is arguable despite absence of a draft memorandum of appeal

Holding

The failure to exhibit a draft memorandum of appeal was not fatal; a single bona fide ground suffices, and the applicant's intention to challenge the second adjudication over the suit property was bona fide.

Reasoning

The omission was attributable to counsel and should not be visited on the innocent litigant. The court may discern arguability from the supporting facts: paragraph 3 of the supporting affidavit showed the applicant intended to challenge the second adjudication claiming the entire suit property. One bona fide ground, one inviting a response from the opposite party and warranting interrogation by the Court, satisfies the threshold.

p. 2
03

Whether the respondents would suffer prejudice if extension is granted

Holding

No prejudice was demonstrated; the respondents failed to respond to the application or the invitation to file submissions.

Reasoning

The application and hearing notice were served electronically on the respondents, who gave no reaction. The court held it is nonetheless obligated to render a merit decision, and found that the absence of any response meant no prejudice had been raised against the relief sought.

p. 3

Legal principles established

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  • Extension of time is an equitable discretionary remedy available only to a deserving party who discharges the burden of explaining the delay, assessed case by case.

Court orders

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  1. 1.Extension of time granted to file the appeal against the ruling and orders of Okong'o, J. dated 4th November 2017 in ELC No. 2918 of 1997

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RN
majority

Wrote the judgment

On appeal from
Environment and Land Court
Nairobi ELC No. 2918 of 1997
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result, I find merit in the application. It is accordingly allowed as prayed.
p. 3final orders - extension of time granted
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court
p. 2Salat principles on extension of time
I am satisfied the period involved in the presentation of the application upon capacitation with certified copies of proceedings is not one that can be termed inordinate. The explanation given is also plausible, reasonable and therefore excusable.
p. 2length and explanation of delay
Even one single bona fide ground will suffice. By bona fide means one that will invite a response from the opposite party and warrant interrogation by the Court.
p. 3arguability threshold

Issues in the judgment

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minor

The judgment states the suit was dismissed on 4th November 2016, while the caption and opening paragraph describe the decision appealed from as dated 4th November 2017.

minor

Typographical error in the certificate of delay date.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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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, "James Lenges v Attorney General & 11 others [2021] KECA 782 (KLR)", Case Analysis (2021). Civil Application No. 325 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/782/eng@2021-03-19

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