Ndonye v Munzyu
The bottom line
#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
#Executive summary
#Key legal issues
#Whether time should be extended to file a strike-out application filed 7 months out of time
Extension refused because the applicant offered no explanation for the 6-month delay beyond the 30-day period under rule 84.
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.
Whether a single judge may strike out an appeal
No; striking out an appeal is outside the remit of a single judge and must go to the full Court.
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.
Legal principles established
#- 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
#- 1.Declined to strike out the Notice of appeal and Record of appeal, that matter being outside the remit of a single judge
- 2.Declined to exercise discretion to extend time for filing the application to strike out
- 3.Made no orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.