Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application 159 of 2021· [2022] KECA 822 (KLR)

Kati & another v Ndalila

Court of Appeal
28 April 2022
749 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal allowed two self-represented litigants to appeal late because they never received the emailed judgment, but refused their stay request.

What this practically means

#

Executive summary

#
In this ruling, the Court of Appeal at Kisumu, sitting as a single judge (F Tuiyott, JA), determined a Notice of Motion by Patrick Wafula Kati and Joseph Wafula Kati, acting in person, seeking leave to appeal out of time against the judgment of Olao, J delivered on 25th July 2021 in ELC Case No. 160 of 2016, and stay of execution of that judgment pending the intended appeal. The judge held that, sitting as a single judge, he was unable to consider the application for stay, citing Kenya Industrial Estates Ltd v Samuel Sang & another. On extension of time, the court accepted uncontroverted evidence that the judgment was delivered via electronic mail to parties who had no email addresses, and that the applicants only became aware of the judgment on 14th November 2021 when they visited the court registry. They filed the application on 19th November 2021, five days later. Applying the settled principles from Leo Sila Mutiso v Rose Hellen Wangari Mwangi - length of delay, reason for delay, prejudice to the respondent, and chances of success - the court found the delay well explained and excused, and no prejudice established given the absence of any response. The application was partially allowed: prayers 3 and 4 were disallowed; the applicants were granted fourteen days to file and serve a notice of appeal and sixty days thereafter to file and serve the Record of Appeal. Costs of the application were made costs in the intended appeal.

Key legal issues

#
01

Whether the delay in filing the notice of appeal was adequately explained

Holding

The delay was well explained and excused because the applicants, acting in person and without email addresses, only became aware of the judgment on 14th November 2021 and moved five days later.

Reasoning

The judgment was delivered via electronic mail on 21st July 2021, yet the applicants had no email addresses. They learned of the judgment on 14th November 2021 at the registry and filed the application on 19th November 2021. Uncontroverted evidence showed they moved quickly, so the delay was excused.

p. 2
02

Whether the respondent would suffer prejudice if leave were granted

Holding

No prejudice was established because the respondent filed no response to the application.

Reasoning

The respondent did not file any response, leaving the applicants' evidence uncontroverted. In the absence of any material demonstrating prejudice, the court could not hold that the grant of leave would substantially or at all prejudice the respondent.

p. 2
03

Whether the single judge could determine the stay application

Holding

The single judge could not consider the stay application, citing Kenya Industrial Estates Ltd v Samuel Sang & another.

Reasoning

The applicants sought both extension of time and stay of execution. Relying on precedent, the judge held that sitting as a single judge he was unable to consider the stay application, and the stay prayers fell away, with prayers 3 and 4 ultimately disallowed.

p. 1

Legal principles established

#
  • A single judge sitting on behalf of the Court can grant extension of time for filing a Notice of Appeal under Rule 4, guided by settled principles including length of delay, reason for delay, prejudice and chances of success.
  • A single judge cannot consider an application for stay of execution in these circumstances.

Court orders

#
  1. 1.Prayers 3 and 4 are disallowed
  2. 2.Prayer 1 allowed to the extent that the applicants shall within fourteen (14) days hereof file and serve a notice of appeal and thereafter, within sixty (60) days of filing and serving the Notice of Appeal, file and serve the Record of Appeal
  3. 3.Cost of this application shall be in the intended appeal

Authorities

#

Legislation

  • Court of Appeal RulesRule 4

Cases cited (2)

  • Kenya Industrial Estates Ltd v Samuel Sang & another
    [2008] eKLR

    That a single judge is unable to consider an application for stay.

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

    Principles guiding the discretionary power to extend time for filing a Notice of Appeal.

On appeal from
Environment and Land Court
ELC Case No. 160 of 2016
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kati & another v Ndalila", Case Analysis (2022). Civil Application 159 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/822/eng@2022-04-28

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