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Court of AppealDismissedCivil Application E041 of 2021· [2022] KECA 550 (KLR)

Mutua & another v Muindi & 2 others

Court of Appeal
10 June 2022
669 words in judgment
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The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi (A. Mbogholi-Msagha, JA) on a notice of motion dated December 17, 2020 brought under Article 159(d) (sic) of the Constitution, Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules. The applicants, Meshack and Rose Katile Mutua, sought extension of time to give notice of appeal, to file an appeal and record of appeal out of time against the judgment of Angote J in the Environment and Land Court at Machakos (ELC Misc. Application No. 33 of 2018) delivered on June 12, 2020. The respondents filed no reply or submissions despite service. The judge applied the established test in Leo Sila Mutiso v Hellen Wangari Mwangi: length and explanation of delay, arguability of the intended appeal, and prejudice to respondents. Although a notice of appeal was prepared and filed promptly and a certificate of delay issued on August 26, 2020, the applicants waited four months, until December 17, 2020, to file the application, and that delay was unexplained. Examining the judgment below and the draft memorandum of appeal, the court found the judgment turned on whether the 3rd respondent had jurisdiction over title to the disputed land, and that no arguable appeal could arise from the facts and ultimate decision. The application was dismissed with no order as to costs. No decision of the lower court was disturbed; the intended appeal was simply not admitted.

Key legal issues

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01

Whether the applicants explained the delay in filing the application for extension of time

Holding

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

Reasoning

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.

02

Whether the intended appeal is arguable

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The notice of motion dated December 17, 2020 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(d) (sic)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal RulesRule 4(1) and (2)

Cases cited (1)

  • Leo Sila Mutiso v Hellen Wangari Mwangi
    [1999] 2 EA 231

    Factors for extension of time: length and reasons for delay, arguability of the appeal, and prejudice to the respondent

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

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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, "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.