Gathuma & another v Hinga
The bottom line
#Kenya's Court of Appeal excused an eight-month delay, allowing landowners to challenge an appeal record their rival's own lawyers disowned as a forgery.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of roughly eight months in moving to strike out the record of appeal should be excused
Yes - although ordinarily inordinate, the delay was sufficiently explained by the 'paralysis' following the respondent's former advocates' disowning of the appeal and the parties' waiting for court directions.
The record of appeal was filed June 26, 2020 and the application made February 21, 2021. Under normal circumstances this would be inordinate, but the peculiar circumstances - Gathara Mahinda & Company Advocates disowning the appeal as a forgery, correspondence with the advocates and the Court, and waiting for directions that never came - justified excusing the delay.
Whether the applicants' proposed application to strike out has prima facie prospects of success
Prima facie yes - the former advocates disowned the record of appeal and the certificate of delay shows the record was filed three years after proceedings were availed - but determination is reserved for the full Court.
The judge noted evidence that the respondent's former advocates disowned and disassociated themselves from the record filed in their name, and that the record was filed three years after certified copies were availed, but expressly declined to decide whether these grounds justify striking out, as that falls to the full Court.
Legal principles established
#- A single judge's jurisdiction on an extension-of-time application is confined to that issue; whether a record of appeal should be struck out is for the full Court.
- An application to strike out a notice or record of appeal under rule 84 must be brought within 30 days of service of the impugned notice or record, failing which extension of time is required.
- The discretion to extend time is wide and unfettered but must be exercised judiciously, considering length of delay, reason for delay, prospects of success and prejudice to the respondent.
Court orders
#- 1.Extension of time granted to the applicants to apply to strike out the record of appeal
- 2.The application to strike out the record of appeal is deemed to have been filed within time
- 3.The registry to fix the application to strike out the record of appeal before the full Court for hearing and determination
- 4.Costs of the motion to abide the outcome of the application to strike out the record of appeal
- On appeal from
- Environment and Land Court at Nairobi
- ELCC No. 34 of 2011
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules (as read with the single-judge jurisdiction to extend time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathuma & another v Hinga", Case Analysis (2022). Civil Appeal (Application) 259 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/530/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.