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Court of AppealAllowedCivil Application E009 of 2020· [2021] KECA 1088 (KLR)

Mangi & 2 others v Estate of Hamisi Mwinyikai Ramadhal alias Khamisi Mwinyikai (Deceased) & 7 others

Court of Appeal
3 December 2021
SKSG Kairu
901 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a two-day late appeal filing, confirming that short, well-explained delays won't kill your appeal.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Mombasa (SG Kairu, JA) on the applicants' motion dated 7th October 2020 seeking enlargement of time to file the memorandum and record of appeal from a ruling of the Environment and Land Court at Mombasa (Munyao Sila, J) delivered on 30th July 2020 in ELC Case No. 68 of 2020 (OS). In that ruling the ELC declined a temporary injunction restraining dealings in Plot No CR 4314/I/MN and related titles over which the applicants claim adverse possession, directing that the claim be established at trial; the substantive suit remains pending. The applicants lodged a notice of appeal promptly on 5th August 2020 but, when the record of appeal fell due on 5th October 2020, discovered that crucial documents were missing; they rectified the record on 7th October 2020, by which time the 60-day period had lapsed by two days. The 1st to 4th respondents opposed, citing Kooba Kenya Limited on inordinate delay and Ngoma vs Mathayo on sufficient reason, and arguing the applicants cannot dispute ownership while claiming adverse possession. Applying the Supreme Court's criteria in Salat vs IEBC and Mutiso vs Wangari, the court held the notice of appeal was filed promptly, the two-day delay was satisfactorily explained and not inordinate, and allowed the application. The applicants were given 45 days to file and serve the memorandum and record of appeal, with costs of the application to be costs in the appeal.

Key legal issues

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01

Whether the applicants satisfied the Salat criteria for extension of time

Holding

The application satisfied the criteria: the notice of appeal was filed promptly, the two-day delay was explained by the discovery of a missing crucial document, and no prejudice to respondents was shown.

Reasoning

The court applied the Salat test: extension is equitable and discretionary, the applicant bears the burden to lay a basis, delay must be explained, and prejudice, undue delay and public interest are considered. The notice of appeal was filed within time on 5th August 2020; the applicants discovered on 5th October 2020 that a crucial document was missing, rectified it on 7th October 2020, and filed the application promptly on 22nd October 2020. A two-day lapse with a satisfactory explanation is not inordinate.

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, granted on a case-to-case basis.
  • A short delay of two days, promptly explained and with the notice of appeal filed within time, is neither inordinate nor unexplained and warrants extension.

Court orders

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  1. 1.Extension of time granted to file the memorandum and record of appeal
  2. 2.Applicants to file and serve the memorandum of appeal and record of appeal within 45 days of delivery of the ruling
  3. 3.Costs of the application shall be costs in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 41
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43

Cases cited (4)

  • County Government of Mombasa vs. Kooba Kenya Limited
    (2019) eKLR

    Cited by respondents for the proposition that a party guilty of inordinate delay does not deserve extension of time

  • Adbul Azizi Ngoma vs. Mungai Mathayo
    (1976) KLR

    Cited by respondents for the proposition that sufficient reason must be demonstrated to warrant extension of time

  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others
    Supreme Court Application No. 16 of 2014 [2014] eKLR

    Criteria for extension of time: equitable remedy, burden on applicant, case-by-case basis, explanation of delay, prejudice, undue delay, public interest

  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    Civil Application No. Nai 255 of 1997 [1999] 2 EA 23

    Supporting the Salat extension-of-time criteria

On appeal from
Environment and Land Court at Mombasa
ELC Case No. 68 of 2020 (OS)
Jurisdiction invoked
Rules 41, 42 and 43 of the Court of Appeal Rules (inherent enlargement of time jurisdiction)

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, "Mangi & 2 others v Estate of Hamisi Mwinyikai Ramadhal alias Khamisi Mwinyikai (Deceased) & 7 others", Case Analysis (2021). Civil Application E009 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1088/eng@2021-12-03

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