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Court of AppealDismissedCivil Appeal (Application) E473 of 2020· [2022] KECA 844 (KLR)

Ndonye v Munzyu

Court of Appeal
27 May 2022
957 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to strike out a land appeal, ruling that a single judge cannot strike out appeals and unexplained delays defeat extension applications.

What this practically means

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Executive summary

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This is a ruling by a single judge of the Court of Appeal (Murgor, JA) on a Notice of Motion dated 6 July 2021 by Michael Maweu Munzyu, the respondent in the appeal, seeking leave to extend time to file an application to strike out the appellant Aida Muthambi Ndonye's Notice of appeal and Record of appeal, and seeking striking out of those documents for non-compliance with the Court's directions to file submissions and for failure to furnish security for costs. The motion was anchored on rules 4 and 84 of the Court's rules and sections 3A and 3B of the Appellate Jurisdiction Act. The appellant, though served, did not appear or file submissions. The judge first declined to strike out the appeal, holding that such relief is not within the remit of a single judge. On extension of time, the judge noted that under rule 84 the strike-out application should have been filed within 30 days of the Record of appeal (filed 26 November 2020), yet the application came 7 months later. Applying the settled principles from Leo Sila Mutiso and Trade Bank Ltd, the court found no explanation for the 6-month delay and held it had no material upon which to exercise its discretion. The remaining factors - prospects of the appeal and prejudice - were considered superfluous. The application was dismissed in its entirety with no orders as to costs, the respondent having not participated. The underlying appeal from the Environment and Land Court at Makueni (Mbogo, J.) remains undisturbed.

Key legal issues

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01

Whether time should be extended to file a strike-out application filed 7 months out of time

Holding

Extension refused because the applicant offered no explanation for the 6-month delay beyond the 30-day period under rule 84.

Reasoning

Rule 84 requires a strike-out application within 30 days of filing the Record of appeal. The Record was filed on 26 November 2020 and the application on 6 July 2021, a 7-month lapse. The court applied the Mutiso and Trade Bank principles: discretion under rule 4 is exercised upon reason, not sympathy, and requires material explaining the delay. Finding none, the remaining factors of appeal success and prejudice were superfluous.

p. 2
02

Whether a single judge may strike out an appeal

Holding

No; striking out an appeal is outside the remit of a single judge and must go to the full Court.

Reasoning

Although the motion sought striking out of the Notice and Record of appeal, the single judge held that such relief is not within a single judge's powers and declined to entertain that prayer, dealing only with the extension-of-time application which was properly before the single judge.

p. 2

Legal principles established

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  • An application to strike out an appeal is not within the remit of a single judge of the Court of Appeal.
  • Extension of time under rule 4 is discretionary and must be exercised judiciously on reason, not sympathy, considering length of delay, reason for delay, chances of success and prejudice.

Court orders

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  1. 1.Declined to strike out the Notice of appeal and Record of appeal, that matter being outside the remit of a single judge
  2. 2.Declined to exercise discretion to extend time for filing the application to strike out
  3. 3.Made no orders as to costs

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3A and 3B
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 84

Cases cited (2)

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

    Guiding principles for extension of time: length of delay, reason for delay, chances of success, prejudice.

  • Trade Bank Ltd In liquidation vs LZ Engineering Construction Ltd and another
    Civil Appln NAI. 282/98

    Long delay requires explanation or material to enable the judge to exercise discretion under rule 4; discretion on reason not sympathy.

On appeal from
Environment and Land Court at Makueni
Makueni ELC No. 1 of 2019
Jurisdiction invoked
Rules 4 and 84 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act

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, "Ndonye v Munzyu", Case Analysis (2022). Civil Appeal (Application) E473 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/844/eng@2022-05-27

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