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Court of AppealDismissedCivil Application E031 of 2022· [2022] KECA 691 (KLR)

Amanaka v Amanaka

Court of Appeal
22 July 2022
687 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to extend time for a late appeal, ruling that choosing review instead of appealing does not excuse a 33-month delay.

What this practically means

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Executive summary

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This is a ruling by the Court of Appeal at Kisumu (F Tuiyott, JA, sitting as a single judge) on a Notice of Motion dated December 24, 2021 in which Joyce Opisa Amanaka sought extension of time to file an appeal out of time against the judgment of the High Court of Kenya at Kakamega (William Musyoka, J) dated 10th April 2019 in Succession Cause No. 534 of 2016. In that judgment, the applicant's house was awarded 60% of the deceased's estate and the respondent's 40%, with landed property registered in joint proprietorship. The applicant explained her delay by the fact that she had instead filed a review application in the High Court on 8th May 2019, which remained unheard after more than 33 months. The court applied the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, holding that the decision to extend time is discretionary and guided by the length of and reasons for the delay, the chances of the appeal succeeding, and prejudice to the respondent. The court found that the applicant had elected between two alternatives - review and appeal - and having chosen review, could not come to the Court of Appeal 33 months later simply because the review had not moved as quickly as she had hoped. The delay was held to be inordinate and the explanation not plausible. The application was dismissed with costs. No response was filed to the application.

Key legal issues

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01

Whether the delay of 33 months in seeking to appeal was adequately explained

Holding

The delay was inordinate and the explanation not plausible; the applicant's election of review over appeal did not justify the delay

Reasoning

The applicant had two alternatives to challenge the High Court judgment: review before the same court or an appeal to the Court of Appeal. She elected review. The Court of Appeal could not tell why the review had not been heard, and disappointment at the pace of the review could not constitute a good reason for the delay in filing an appeal.

p. 2
02

The principles governing extension of time applications

Holding

The court applies the settled Mutiso principles: length of delay, reasons for delay, chances of appeal succeeding, and prejudice to the respondent

Reasoning

Sitting as a single judge, the court restated the principles from Leo Sila Mutiso v Rose Hellen Wangari Mwangi, confirming that the decision to extend time is discretionary and that the four factors are weighed in deciding whether to grant an extension of time for appealing.

p. 2

Legal principles established

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  • Extension of time is discretionary and is governed by the length of and reasons for delay, chances of appeal succeeding, and prejudice to the respondent
  • A party who elects review in the High Court instead of an appeal cannot later seek extension of time merely because the review was slow

Court orders

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  1. 1.The Notice of Motion dated December 24, 2021 seeking extension of time is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 22
  • Constitution of KenyaArticle 23

Cases cited (1)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. Nai 251 of 1997

    Settled principles for extension of time: length of delay, reasons for delay, chances of appeal succeeding, and prejudice to the respondent

On appeal from
High Court of Kenya at Kakamega
Succession Cause No. 534 of 2016
Jurisdiction invoked
Articles 22 and 23 of the Constitution (as invoked by the applicant); single judge jurisdiction of the Court of Appeal

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, "Amanaka v Amanaka", Case Analysis (2022). Civil Application E031 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/691/eng@2022-07-22

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