Mary Chepkurui Rugechech v Raymond Kibet Chepkwony [2021] KECA 1018 (KLR)
The bottom line
#Kenya's Court of Appeal gave a delayed appellant a second chance, ruling that stay of execution can only come after leave to appeal is granted and a notice of appeal is filed.
What this practically means
#Executive summary
#Key legal issues
#Whether the inordinate delay of over one year was adequately explained to warrant extension of time
The delay was inordinate, but the applicant was given the benefit of doubt on her claim of ignorance of the ruling and non-communication by her advocate, and leave was granted.
The ruling was delivered on 29th November 2017 and the application filed in February 2019, a delay of over a year. The applicant explained she only discovered the ruling when she visited the registry on 15th February 2019, and blamed her advocate. The Judge could not tell from the scanty documents whether the current advocate had acted below, but gave the applicant the benefit of doubt and exercised discretion in her favour.
Whether the intended appeal was arguable
A cursory look showed the orders sought to be appealed against were not frivolous, though the merits were not within the single Judge's province at that stage.
The Judge confined the edit on arguability, since merits belong to the full bench, but found on a cursory look that the dispute over distribution of the estate, involving children born of a woman-to-woman marriage of the applicant's co-wife, raised non-frivolous issues. Arguability is one of the Fakir Mohamed factors relevant to extension of time.
Legal principles established
#- An application for leave to file an appeal out of time is made before a single Judge, and stay of execution presupposes leave first and the institution of a notice of appeal.
- The factors for extension of time under Rule 4 are relevant but not exhaustive, since the discretion is unfettered.
Court orders
#- 1.Leave granted to the applicant to file an appeal out of time
- 2.Thirty (30) days within which to file the appeal
- 3.No order as to costs
- On appeal from
- High Court of Kenya at Kericho
- Not stated in the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, read with Sections 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Chepkurui Rugechech v Raymond Kibet Chepkwony [2021] KECA 1018 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1018/eng@2021-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.