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Court of AppealDismissedCivil Application E040 of 2022· [2022] KECA 621 (KLR)
Machiri Y.S.M. Mohamed v Abubakar Salim Machiri
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·~4 min to read original · ~4 min briefThe bottom line
#Kenya's Court of Appeal dismissed a request to file an appeal late because the applicant offered no credible explanation for months of unexplained delay.
What this practically means
#Executive summary
#This is a single-judge ruling of the Court of Appeal at Kisumu (Mumbi Ngugi, JA) on an application dated 7th March 2022 seeking leave to file and serve the record of appeal out of time against the judgment of Olao, J of the Environment and Land Court at Bungoma in ELC No. 335 of 2013 delivered on 4th February 2021. The applicant attributed the delay to the late release of a certificate of delay, which he said was signed in August 2021 but only released to his advocates via WhatsApp on 31st January 2022. The court applied the Rule 4 principles from Leo Sila Mutiso v Rose Hellen Wangari Mwangi: length of delay, reasons for delay, chances of success, and prejudice to the respondent. It found the notice of appeal was filed 30 days late with no explanation, and that no valid letter bespeaking the proceedings, duly served on the respondent, was annexed to entitle the applicant to the proviso to Rule 82(1). The certificate-of-delay explanation was found not credible, and the applicant's advocate had not sworn a supporting affidavit, leaving the applicant to depose on questionable information. The court held that no plausible reasons explained either the 30-day delay in filing the notice of appeal or the 10-month delay in seeking extension of time, and dismissed the application. As there was no response from the respondent, no order as to costs was made.
Key legal issues
#01
Extension of time to file record of appeal under Rule 4
Holding
Application dismissed; no plausible reasons for the delay were offered
Reasoning
The notice of appeal was filed 30 days late with no explanation. No valid letter bespeaking proceedings served on the respondent was annexed to entitle the applicant to the proviso to Rule 82(1). The certificate-of-delay explanation was found not credible, and the applicant's advocate did not swear an affidavit. The 10-month delay in seeking extension was also unexplained.
p. 2
Legal principles established
#- In exercising discretion under Rule 4, the court considers the length of the delay, the reasons for the delay, possibly the chances of success of the intended appeal, and the prejudice to the respondent
- To benefit from the proviso to Rule 82(1), an applicant must place before the court a letter bespeaking the proceedings, duly served on the respondent
- An applicant who deposes to registry follow-up matters without an affidavit from the instructing advocate does so on questionable information, which is of no avail
Court orders
#- 1.The application dated 7th March, 2022 is dismissed
- 2.No order as to costs
- On appeal from
- Environment and Land Court at Bungoma
- ELC No. 335 of 2013
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2010 (extension of time discretion)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Machiri Y.S.M. Mohamed v Abubakar Salim Machiri", Case Analysis (2022). Civil Application E040 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/621/eng@2022-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.