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Court of AppealDismissedCivil Application E332 of 2021· [2022] KECA 999 (KLR)

Munyeke v Mbilo & 5 others

Court of Appeal
23 September 2022
WKW. Karanja
1,272 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to let a landowner appeal two years late, because he couldn't explain the delay or show the appeal had any merit.

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 Nairobi by W. Karanja, JA, on a Notice of Motion dated September 20, 2021 brought under Rule 4 of the Court of Appeal Rules seeking leave to appeal out of time against the judgment of the Environment and Land Court at Makueni (Mbogo, J.) delivered on November 28, 2019 in ELC Case No. 16 of 2007, a land dispute in which the applicant's claim challenging a land adjudication process was dismissed for lack of locus standi because the register entries he challenged were in the names of his two spouses. The applicant explained the delay of over two years by reference to counsel's indisposition, his parents' illness, and his unavailability to take instructions. The respondents opposed, citing inordinate and unexplained delay, the age of the matter (over 14 years), the need for finality, and prejudice. Applying the settled principles in Leo Sila Mutiso v. Hellen Wangari Mwangi and Muring Company Ltd v. Archdiocese of Nairobi Registered Trustees, the court held the delay of 2 years and 2 months inordinate and unexplained: the illness averments were made by the applicant rather than counsel and were hearsay, the applicant's own illness was unsupported, and Covid-19 was no excuse since online filing was available. No memorandum of appeal or impugned judgment was annexed, so the court could not assess the prospects of success. The respondents, who had held a valid judgment for 15 years, would be prejudiced. The application was dismissed with costs to the respondents. The decision below was not disturbed; this ruling concerns only leave to appeal.

Key legal issues

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01

Whether the delay of 2 years and 2 months was inordinate and sufficiently explained

Holding

The delay was inordinate and not plausibly explained; explanations based on counsel's or parents' illness were hearsay from the applicant and unsupported, and Covid-19 did not excuse delay since online filing was available.

Reasoning

The application was filed over two years after judgment. The stated reasons - counsel's indisposition or his parents' illness - were deposed by the applicant, not counsel, making them hearsay and inadmissible. The applicant's own illness claim had no evidential support. Covid-19 was irrelevant because documents could be filed online without visiting the registry.

p. 3
02

Whether the intended appeal had chances of success

Holding

The court could not assess the merits because no memorandum of appeal or impugned judgment was attached; the intended appeal might be merely intended to delay the matter.

Reasoning

An application for extension of time must demonstrate, prima facie, that the intended appeal is not frivolous. Without a draft memorandum of appeal or the impugned judgment, the court had no material to evaluate the dispute or the prospects of success, save for the respondents' account that the claim was dismissed for lack of locus standi.

p. 3
03

Whether the respondents would be prejudiced by the extension

Holding

The respondents would be prejudiced; the matter had hung over them for 15 years and they hold a valid judgment whose fruits they should be allowed to enjoy.

Reasoning

Finality in litigation is a weighty consideration. The respondents had a judgment in their favour since 2019 in a case dating back to 2007. Prolonging the litigation through an unexplained late appeal would prejudice them and deny them the fruits of their judgment.

p. 3

Legal principles established

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  • Extension of time under Rule 4 is discretionary and guided by the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
  • Averments about counsel's illness or indisposition made by the applicant rather than by counsel on affidavit amount to hearsay and are inadmissible.
  • An applicant for extension of time must attach a draft memorandum of appeal and the impugned judgment to enable the court to assess the chances of success of the intended appeal.

Court orders

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  1. 1.The application for leave to appeal out of time is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (3)

  • Leo Sila Mutiso v. Hellen Wangari Mwangi
    [1999] 2 EA 231

    Principles for extension of time: length of delay, reason for delay, chances of success, prejudice to respondent.

  • Fakir Mohammed v. Joseph Mugambi & 2 others
    [2005] eKLR

    Reiteration of the extension-of-time principles.

  • Muringa Company Ltd v. Archdiocese of Nairobi Registered Trustees
    [2020] eKLR

    Expounded considerations in extension-of-time applications, including conduct of parties, balancing interests, and chances of success.

On appeal from
Environment and Land Court at Makueni
ELC Case No. 16 of 2007
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend time)

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, "Munyeke v Mbilo & 5 others", Case Analysis (2022). Civil Application E332 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/999/eng@2022-09-23

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