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Court of AppealDismissedNot stated in the judgment (application dated 26th October 2020, Court of Appeal, Nairobi)· [2021] KECA 959 (KLR)

Samuel Mukuha Njuki & another v Margaret Nyokabi Kahihu & another [2021] KECA 959 (KLR)

Court of Appeal of Kenya
19 February 2021
SKS. Gatembu Kairu
1,164 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to let two brothers revive a 16-year-old land dispute, ruling that extreme unexplained delay forfeits the right to appeal.

What this practically means

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Executive summary

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This was an application under Rule 4 of the Court of Appeal Rules, decided by a single judge of the Court of Appeal at Nairobi, seeking leave to appeal out of time against the ruling of Mbogholi, J. delivered on 22nd September 2010, together with a prayer for stay of execution in HCCC No. 1476 of 2005 (OS). The underlying dispute concerned Dagorretti/Riruta/1868, claimed by the respondents by adverse possession against the applicants' late father; the suit was compromised by a consent judgment entered before Angawa, J. on 15th April 2008, which the applicants have sought to unravel ever since through successive dismissed applications, including rulings by Osiemo, J. (23rd June 2009) and Mbogholi, J. (22nd September 2010 and 12th July 2011). The single judge declined to entertain the stay prayer, holding it a matter for the full Court under Rule 53. Applying the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, the court found the delay - 16 years from the Angawa judgment and roughly 10 years from the impugned ruling - inordinate and unexplained, with no good and sufficient cause shown despite the applicants' reliance on the mistakes of successive advocates. The court also noted inconsistencies between the memorandum of appeal (targeting the consent judgment on adverse possession) and the notice of appeal (targeting the 2008 Angawa judgment). The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether leave to appeal out of time should be granted on the Salat principles

Holding

Leave was refused: the delay of 16 years (or 10 years from the ruling) was inordinate, unexplained, and no good and sufficient cause was shown.

Reasoning

The court consolidated the Salat principles: extension of time is an equitable discretionary remedy requiring a satisfactory explanation for the delay, absence of prejudice, and promptitude. The applicants blamed successive advocates but offered no explanation why no appeal or extension application was lodged within a reasonable time after the 2008 judgment or the 2010 ruling. Inconsistencies between the memorandum of appeal, the notice of appeal and the application undermined the case. Delay of that magnitude could not be condoned.

p. 2

Legal principles established

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  • Extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court, and the applicant must lay a basis and satisfactorily explain the delay.

Court orders

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  1. 1.The application dated 26th October 2020 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 53

Cases cited (7)

  • Paula Waheti Muchina vs. Henry Wanjohi Muchina
    [2003] eKLR
  • Harrison Mbaria Mbogo & another vs. Mbutu Ngugi
    Civil Application No. Nai 340 of 1996
  • Major Joseph Mweteri Igweta vs. Mukira M’Ethare & Attorney General
    Civil Application No. Nai 8 of 2000
  • First American Bank of Kenya Ltd vs. Gulab P Shah & 2 others
    [200] 1 EA 65
  • Aviation Cargo Support Limited vs. St. Mark Freight Services Limited
  • Gloria Paolo vs Pietro Scavo
    [2019] eKLR
  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others
    Supreme Court Application No. 16 of 2014 [2014] eKLR
On appeal from
High Court of Kenya
HCCC No. 1476 of 2005 (OS)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time, decided by a single judge)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Mukuha Njuki & another v Margaret Nyokabi Kahihu & another [2021] KECA 959 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 26th October 2020, Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/959/eng@2021-02-19

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