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Court of AppealDismissedCivil Application E075 of 2021· [2022] KECA 969 (KLR)

Kamau v Macharia & 5 others

Court of Appeal
26 August 2022
KLK. I. Laibuta
2,143 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a 16-month-stalled land appeal, confirming that an arguable case alone cannot excuse unexplained delay.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nyeri (K. I. Laibuta, JA) on a Notice of Motion dated September 3, 2021 brought under Rules 4, 39, 42 and 43 of the Court of Appeal Rules, seeking extension of time to file and serve a notice of appeal and record of appeal out of time from the judgment of J. G. Kemei, J of the Environment and Land Court at Murang'a delivered on March 11, 2021 in ELC Case No. 418B of 2017, which had dismissed the applicant's land case. The court found that a notice of appeal had in fact been filed on March 17, 2021, so enlargement of time for the notice was unnecessary. On the record of appeal, the court applied the settled Rule 4 principles from Leo Sila Mutiso v Helen Wangari Mwangi and Fakir Mohammed v Joseph Mugambi: although the draft memorandum disclosed an arguable appeal, arguability is only the first step. The delay of over 16 months was inordinate; the applicant blamed her advocates and COVID-19 financial hardship but gave no explanation for failing to obtain certified proceedings, and financial hardship was inconsistent with pauper-appeal provisions and legal aid schemes. The respondents, who had peaceably embraced the judgment, would be prejudiced. The motion was dismissed with costs to the respondents. The decision binds lower courts on the requirement of a plausible and satisfactory explanation for delay under Rule 4.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The nine grounds in the draft Memorandum of Appeal show the intended appeal is arguable with a possibility of success

Reasoning

The court reviewed the draft grounds, including alleged failure to consider the Land Registrar's evidence and wrongful application of the innocent purchaser doctrine, and found they point to a reasonable conclusion that the appeal is arguable, citing the standard that an arguable appeal need not necessarily succeed.

p. 3
02

Whether the delay in filing the record of appeal is excusable

Holding

The delay of over 16 months is inordinate and inexcusable; no plausible and satisfactory explanation was given

Reasoning

The applicant blamed her advocates and COVID-19 financial hardship but never explained her failure to obtain certified copies of proceedings. Pleading financial difficulty is inconsistent with available pauper appeals and legal aid schemes. Indolence works to the respondents' prejudice.

p. 3
03

Whether the respondents would be prejudiced by the extension

Holding

The respondents would suffer undue prejudice, having peaceably embraced the judgment and moved on

Reasoning

Following Cecilia Wanja Waweru, the applicant's indolence unfairly delays or denies the respondents the fruits of the judgment. Granting the extension would reward an indolent litigant seeking to resurrect a long-dead dispute.

Legal principles established

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  • Rule 4 confers an unfettered discretion on the Court to extend time on such terms as it thinks just
  • An arguable appeal is only the first step; the applicant must also satisfactorily explain the delay and absence of prejudice

Court orders

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  1. 1.The applicant's Notice of Motion dated September 3, 2021 is dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 39
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43
  • Court of Appeal RulesRule 75(1) and (2), now Rule 77(1) and (2)
  • Court of Appeal RulesRule 82, now Rule 84
  • Land Registration Actsection 28

Cases cited (7)

  • Leo Sila Mutiso v Helen Wangari Mwangi
    [1999] 2 EA p231

    Principles for exercise of discretion under Rule 4: length of delay, reason, chances of success, prejudice.

  • Fakir Mohammed v Joseph Mugambi and two others
    [2005] eKLR

    Discretion under Rule 4 is unfettered; relevant but not exhaustive factors.

  • Joseph Wanjohi Njau v Benson Maina Kabau
    Civil Application No. 97 of 2012 (Unreported)

    An arguable appeal is not one that must necessarily succeed but one which ought to be argued fully.

  • Muchungi Kiragu v James Muchungi Kiragu and another
    [1998] eKLR

    Extension of time granted on basis of arguable appeal; wrong to shut an applicant out unless inexcusable and prejudicial.

  • Cecilia Wanja Waweru v Jackson Wainaina Muiruri & another
    [2014] eKLR

    Applicant's indolence counts and, absent reasonable excuse, prejudices the respondent.

  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR

    No minimum or maximum period of delay; delay must be satisfactorily explained.

  • Abdul Aziz Ngoma v Mungai Mathayo
    [1976] Kenya LR p.61-2

    Discretion under rule 4 arises only after sufficient reason for extension is established.

On appeal from
Environment and Land Court of Kenya at Murang'a
Environment and Land Court Case No. 418B of 2017
Jurisdiction invoked
Rules 4, 39, 42 and 43 of the Court of Appeal Rules (extension of time under Rule 4)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kamau v Macharia & 5 others", Case Analysis (2022). Civil Application E075 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/969/eng@2022-08-26

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