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Court of AppealDismissedCivil Appeal (Application) E552 of 2021· [2022] KECA 392 (KLR)

Ndirangu & 3 others v Kariuki

Court of Appeal
4 March 2022
DMD. K. Musinga
555 words in judgment
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The bottom line

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The Court of Appeal refused to give landowners more time to appeal because they delayed, kept poor records, and had already been evicted.

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 Nairobi by D. K. Musinga, JA, on the applicants' Notice of Motion dated 8th August 2021 seeking extension of time to file a memorandum of appeal against the judgment of the Environment and Land Court at Murang'a (J. G. Kemei, J.) in E.L.C Cause No. 312 of 2017. The applicants, who had filed a notice of appeal on 18th January 2021 and applied for certified copies of the proceedings and judgment, attributed the delay to Covid-19 movement restrictions, saying they were not tech savvy and could not travel to Nairobi to file electronically. The respondent opposed, stating the proceedings were ready at judgment delivery, the notice of appeal was not served, and he had already executed the judgment, evicting the applicants on 19th May 2021. The court held that although rule 4 confers discretion to extend time, it must be exercised judicially. The applicants had not annexed the letter requesting certified copies nor evidence of payment, had not stated when they received the documents, and had not shown they could not file electronically. Further, having been lawfully evicted before filing the application, the intended appeal's chances of success were doubtful. The application was found wanting in merit and dismissed with costs to the respondent. The decision below was not disturbed; this ruling concerns only the extension of time.

Key legal issues

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01

Exercise of discretion to extend time under rule 4

Holding

The discretion exists but must be exercised judicially; the applicants failed to demonstrate diligence or merit

Reasoning

The court weighed the applicants' explanations: no letter requesting certified proceedings or proof of payment was annexed; no date of receipt of documents was given; and inability to file electronically was not demonstrated given Covid-19 e-filing options. The applicants' eviction from the land before filing meant the intended appeal was largely academic and doubtful of success.

02

Chances of success of the intended appeal

Holding

Doubtful, because the applicants had already been lawfully evicted from the disputed land

Reasoning

The respondent deposed that he had executed the trial court's judgment and evicted the applicants on 19th May 2021. The court accepted that as at the date of filing the extension application the applicants were no longer in possession, making the intended appeal doubtful of success and the application overtaken by events.

p. 2

Legal principles established

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  • The discretion to extend time under rule 4 of the Court of Appeal Rules must be exercised judicially, not capriciously

Court orders

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  1. 1.The application for extension of time is dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4
On appeal from
Environment and Land Court at Murang'a
E.L.C Cause No. 312 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (inherent/appellate discretion to extend time)

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, "Ndirangu & 3 others v Kariuki", Case Analysis (2022). Civil Appeal (Application) E552 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/392/eng@2022-03-04

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