Kimari v Mburu & 3 others
The bottom line
#Kenya's Court of Appeal allowed a late appeal because the delay was explained, confirming that grounds of opposition cannot replace a sworn affidavit.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to lodge a notice of appeal
Delay was not inordinate, was well explained, and no uncompensable prejudice would be suffered; discretion exercised in favour of the applicant.
The court applied the settled principles for extension of time: length of delay, reason for delay, chances of success of the appeal, and prejudice. Internet connectivity failure at counsel's chambers and the delayed availability of the signed ruling explained the delay; the respondents could be compensated by costs.
Evidential value of submissions and grounds of opposition
Grounds of opposition are impermissible in response to a notice of motion under rule 52, and submissions cannot controvert sworn averments; uncontroverted averments stand, though submissions remain useful on issues of law.
The court held that a respondent may only file an affidavit in reply; factual disputes must be raised by replying affidavit. Submissions serve only to canvass issues of law and highlight portions of the record, not to supply evidence.
Legal principles established
#- A party served with a notice of motion in this Court may only file an affidavit in reply, not grounds of opposition; factual depositions can only be challenged by replying affidavit.
- Submissions do not constitute evidence and cannot be relied upon to controvert averments in an affidavit.
Court orders
#- 1.Leave granted to the applicant to file and serve his notice of appeal within fourteen (14) days from the date of delivery of the ruling
- 2.Applicant to bear the costs of the application
- On appeal from
- Environment and Land Court at Nairobi
- E.L.C. Suit No. 130 of 2018
- Jurisdiction invoked
- Rule 52 of the Court of Appeal Rules (application for leave to lodge a notice of appeal out of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimari v Mburu & 3 others", Case Analysis (2022). Civil Application E171 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1001/eng@2022-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.