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Court of AppealPartially AllowedCivil Appeal (Application) E571 of 2021· [2022] KECA 615 (KLR)

Chengo v Odida

Court of Appeal
28 April 2022
1,030 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a litigant 9 extra days to appeal a contempt ruling, but refused to also hear his stay request in the same application.

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 (M'Inoti, JA) on an omnibus motion by Martin Chengo seeking extension of time to file a notice of appeal and, in the alternative, stay of execution, against a ruling of the Environment and Land Court (Komingoi, J.) dated 17th February 2022 in which Chengo was found guilty of contempt of court for disobeying an injunction over LR No. 209/20594, Nairobi South B, and ordered to purge his contempt by removing structures within 30 days or face a fine of Kshs 200,000 or four months' imprisonment. The judge declined to entertain the stay of execution prayer, reiterating that it is contingent on time first being extended and is for the full Court, not a single judge. On extension of time, the judge found the 9-day delay neither inordinate nor prejudicial, accepted the explanation of erroneous computation of time, and noted the importance of the issues in the intended appeal - possible loss of liberty on one side and obedience of court orders and the rule of law on the other. Applying the Imperial Bank v. Popat factors, the judge allowed the motion, deemed the notice of appeal filed on time, and ordered that costs of the application abide the outcome of the appeal. The underlying contempt conviction and the intended appeal remain for determination by the full Court.

Key legal issues

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01

Whether a 9-day delay in filing a notice of appeal was inordinate

Holding

A 9-day delay was neither inordinate nor prejudicial, and the explanation of erroneous computation of time was accepted

Reasoning

The single judge weighed the short length of delay, the accepted explanation of erroneous computation of time, absence of prejudice to the respondent, and the importance of the issues in the intended appeal (liberty versus obedience of court orders) in exercising the unfettered Rule 4 discretion judiciously.

02

Whether an omnibus application for extension of time and stay of execution is competent

Holding

The two prayers should not be made in the same application; the court considered only the extension of time prayer

Reasoning

Stay of execution when a party is out of time is contingent on time first being extended; extension of time is heard by a single judge while stay is determined by the full Court, so the prayers cannot properly be combined in one motion.

p. 1

Legal principles established

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  • Extension of time and stay of execution when a party is out of time should not be sought in the same application, as they are heard by different fora and stay is contingent on extension
  • The discretion under Rule 4 of the Court of Appeal Rules is wide and unfettered but must be exercised judiciously, guided by the length of and reason for delay, prejudice, conduct of parties and other stated factors

Court orders

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  1. 1.The motion dated 14th March 2022 is allowed
  2. 2.The notice of appeal dated 9th March 2022 is deemed as filed on time
  3. 3.Costs of the application shall abide the outcome of the appeal
On appeal from
Environment and Land Court at Nairobi
ELCC No. 648 of 2014
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of 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, "Chengo v Odida", Case Analysis (2022). Civil Appeal (Application) E571 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/615/eng@2022-04-28

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