Mutua & another v Muindi & 2 others
The bottom line
#The Court of Appeal refused to extend time for filing an appeal because the applicants waited four months without explaining the delay and showed no arguable appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants explained the delay in filing the application for extension of time
The delay was unexplained; although the certificate of delay issued on August 26, 2020, the application was not filed until December 17, 2020, four months later
The court distinguished between delay attributable to the court registry (covered by the certificate of delay) and the applicants' own unexplained four-month delay in moving to court after the certificate issued. Unexplained delay disentitles the applicant to extension of time even where the initial notice of appeal was filed in time but acknowledged late by the Registrar.
Whether the intended appeal is arguable
There is no arguable appeal; the judgment below turned on whether the 3rd respondent had jurisdiction over title to the disputed land, and the draft memorandum disclosed no arguable grounds
Although not hearing the appeal itself, the single judge examined the judgment of the Superior Court and the draft memorandum of appeal and concluded that neither the facts nor the ultimate decision could sustain an arguable appeal. Arguability is assessed on the draft grounds at this interlocutory stage.
Legal principles established
#- In an application of this nature the court considers the length of and reason for delay, whether there is an arguable appeal, and the prejudice to the respondent if the application is allowed
Court orders
#- 1.The notice of motion dated December 17, 2020 is dismissed
- 2.No order as to costs
- On appeal from
- Environment and Land Court at Machakos
- ELC Misc. Application No. 33 of 2018
- Jurisdiction invoked
- Article 159(d) of the Constitution; Sections 3A and 3B of the Appellate Jurisdiction Act; Rule 4(1) and (2) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutua & another v Muindi & 2 others", Case Analysis (2022). Civil Application E041 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/550/eng@2022-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.