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Court of AppealAllowedCivil Appeal (Application) E069 of 2021· [2022] KECA 549 (KLR)

Chai Lwambi Mwalambe (suing as Legal Representative of the Estate of Lwambi Mwalambe Beponda) v District Land Registrar & 4 others; Said & 6 others (Interested Parties)

Court of Appeal
6 May 2022
1,537 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal excused a nearly one-year delay in filing an appeal record, citing Covid-19 disruptions, and allowed the land dispute appeal to proceed.

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 (Nyamweya JA) on a Notice of Motion dated 1st October 2021 seeking extension of time to file a record of appeal against the judgment of the Environment and Land Court at Mombasa (Munyao Sila J.) delivered on 30th September 2020 in ELC Petition No. 5 of 2010, which dismissed the Appellant's constitutional petition claiming historical injustices over land, non-discrimination, and property rights. The Appellant filed a notice of appeal in time on 8th October 2020, but under Rule 82(1) of the Court of Appeal Rules the record of appeal ought to have been filed by 8th December 2020; it was instead filed on 4th October 2021, an unexplained delay of almost one year. The 1st to 5th Respondents opposed, relying on the Supreme Court decisions in Charo v Mwashetani and Salat v IEBC, arguing the delay was inordinate and unexplained. The Interested Parties neither attended nor responded. Applying the principles in Leo Sila Mutiso v Rose Hellen Wangare Mwangi, the court took judicial notice of the Covid-19 pandemic and its disruption of society and judicial operations, found the delay excusable, noted the Appellant's mitigating steps, found reasonable grounds of appeal in the draft memorandum concerning the analysis of historical injustices and competing claims, and held that the balance tilted in the Appellant's favour given the emotive nature of land disputes and available interventions to mitigate prejudice. The application was allowed: time was extended, the record of appeal filed on 4th October 2021 was deemed properly on record, and the Appellant was ordered to meet the costs of the application.

Key legal issues

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01

Whether the delay of almost one year in filing the record of appeal was excusable

Holding

The delay was excusable given the Covid-19 pandemic, judicial notice of which the court took, and the Appellant's steps to mitigate the delay.

Reasoning

The court took judicial notice of the Covid-19 pandemic and its disruption of society and judicial operations, finding the delay excusable on that basis. It also noted the Appellant had taken steps to prepare and file the record, mitigating the delay. The concession of delay was not disputed, but the pandemic context and mitigation tilted the discretion in the Appellant's favour.

p. 3
02

Whether the intended appeal had reasonable chances of success

Holding

The draft memorandum of appeal raised reasonable grounds, principally the alleged absence of proper and legal analysis of historical injustices and the competing claims to the suit property.

Reasoning

Applying the third Mutiso principle, the court examined the annexed draft memorandum of appeal and found reasonable grounds raised, principally that the ELC had not properly and legally analysed the concept of and evidence of historical injustices in relation to the suit property, nor the evidence of the different claims to it. This supported the grant of extension.

p. 3
03

Whether prejudice to the respondents outweighed the grant of extension

Holding

Given the emotive nature of land disputes and available interventions to mitigate prejudice, the balance tilted in favour of the Appellant.

Reasoning

The court applied the fourth Mutiso principle on prejudice. It reasoned that land disputes are emotive and that interventions are available to mitigate and address any prejudice the Respondents and Interested Parties may suffer during the pendency and at the conclusion of the appeal. Accordingly, the balance of convenience tilted in favour of the Appellant.

p. 3

Legal principles established

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  • The decision whether or not to extend time for appealing is discretionary, and the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
  • The Covid-19 pandemic and its disruptions to society and judicial operations may constitute an excusable reason for delay in filing a record of appeal.

Court orders

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  1. 1.The Appellant is granted extension of time to file and serve its record of appeal against the judgment dated 30th September 2020 delivered by the Environment and Land Court (ELC) in Mombasa
  2. 2.The Appellant's Record of Appeal filed on 4th October 2021 is deemed to be properly on record
  3. 3.The Appellant shall meet the costs of this application

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 82(1)

Cases cited (3)

  • Charo vs. Mwashetani & 103 Others
    (2014) eKLR

    That timelines are a vital ingredient in the quest for efficient and effective governance under the Constitution.

  • Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commissions & 7 others
    [2014] eKLR

    The principles the Court should consider in exercise of its discretion to extend time.

  • Leo Sila Mutiso v Rose Hellen Wangare Mwangi
    Civil Application No Nai 255 of 1997 (ur)

    The well-stated principles governing extension of time: length and reason for delay, chances of success, and prejudice.

On appeal from
Environment and Land Court at Mombasa
ELC Petition No. 5 of 2010
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (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, "Chai Lwambi Mwalambe (suing as Legal Representative of the Estate of Lwambi Mwalambe Beponda) v District Land Registrar & 4 others; Said & 6 others (Interested Parties)", Case Analysis (2022). Civil Appeal (Application) E069 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/549/eng@2022-05-06

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