Shikhoba v Odera & 3 others
The bottom line
#Kenya's Court of Appeal refused to revive a late land appeal, confirming that unexplained delays and waiting for typed proceedings won't excuse missing appeal deadlines.
What this practically means
#Executive summary
#Key legal issues
#Circumstances warranting interference with a single Judge's discretionary decision on a rule 4 extension-of-time application
The full Court will not interfere absent demonstration of an irrelevant factor considered, a relevant factor ignored, misapprehension of law or fact, or a plainly wrong decision; the applicant bore and failed to discharge that onus.
The Court restated the Raballa principles governing references against single Judges' discretionary rulings and the Thuita Mwangi/Mutiso factors for rule 4 applications: length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent. It found the single Judge had properly weighed the unexplained gaps in the delay and that nothing suggested abuse of discretion or plain error of principle.
Whether delay in availing typed proceedings by the court excuses delay in filing a notice of appeal
No. A notice of appeal under Rule 75 does not require certified proceedings, so the applicant's reliance on the certificate of delay was unavailing for the unexplained period.
The single Judge found the period between withdrawal of earlier applications on 16th September 2019 and the filing of the current motion on 9th December 2019 unexplained. The applicant blamed the ELC's delay in typing proceedings, but the full Court endorsed the finding that certified proceedings are not a prerequisite to filing a notice of appeal under Rule 75, so that explanation had no substance.
Legal principles established
#- A full Court on a reference under Rule 55(1)(b) will only interfere with a single Judge's exercise of discretion under rule 4 where the applicant demonstrates an irrelevant or ignored relevant factor, misapprehension of law or fact, or a plainly wrong decision; the onus is on the applicant.
- Certified proceedings are not necessary before a notice of appeal can be filed under Rule 75, so delay by the court in typing proceedings does not excuse failure to file a notice of appeal.
Court orders
#- 1.The reference to the full Court is dismissed with costs
- On appeal from
- Environment and Land Court at Kakamega
- Kakamega ELC No. 129 of 2014
- Jurisdiction invoked
- Rule 55(1)(b) of the Court of Appeal Rules (reference to the full Court from a single Judge's decision under rule 4)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shikhoba v Odera & 3 others", Case Analysis (2022). Civil Application 157 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/826/eng@2022-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.