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Court of AppealDismissedCivil Application 87 of 2020· [2022] KECA 1006 (KLR)

Mucwa v Makembo & 3 others

Court of Appeal
23 September 2022
KMK M'Inoti
1,344 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to forgive a two-year appeal delay, ruling the excuses were not genuine, so the land dispute judgment now stands.

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 (M'Inoti, JA) on an omnibus motion by Mutiria Karumbai Mucwa seeking extension of time to file a notice and record of appeal out of time against the judgment and decree of the Environment and Land Court at Chuka (Njoroge, J.) dated 18 December 2018 in ELCC No. 188 of 2017, together with prayers for stay of proceedings and stay of execution. The judge severed the application, holding that extension of time and stay are separate and distinct applications, the latter being for the full court and incompetent before extension is granted; the applicant also belatedly abandoned the stay prayers. The judgment appealed was delivered on 18 December 2018; the notice of appeal and application for certified copies were filed within time, but the extension application was made on 18 September 2020, nearly two years later. The applicant attributed the delay to ill health, financial constraints, inability to obtain certified copies, and mistake of counsel. The court rejected these explanations: the only medical evidence was a note indicating hypertension; the applicant had engaged a second firm of advocates in October 2019, contradicting the claim of financial hardship; and the first advocates on record offered no explanation, amounting to plain indolence rather than mistake of counsel. The 1st respondent's uncontroverted claim that he was the registered owner in occupation and stood to suffer greater prejudice also weighed against the applicant. Applying the settled principles in Imperial Bank v Popat and Salat v IEBC, the judge found no merit in the application and dismissed it with costs to the 1st respondent.

Key legal issues

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01

Whether the delay of nearly two years in applying for extension of time was adequately explained

Holding

The delay was inordinate and the explanations of illness, financial constraint and mistake of counsel were rejected as not candid or genuine

Reasoning

The only medical evidence was a note indicating hypertension; the applicant engaged a second firm of advocates in 2019, contradicting the claim of financial hardship; the first advocates on record never explained their failure to file the record. The court found plain indolence rather than mistake of counsel and declined to exercise its discretion.

p. 3
02

Whether the applicant suffered prejudice if time was not extended

Holding

The 1st respondent's uncontroverted submission that he, as registered owner in occupation, stood to suffer more prejudice was accepted

Reasoning

The applicant elected to maintain studious silence rather than controvert the 1st respondent's claim of occupation and greater prejudice, which weighed against extension of time.

p. 3

Legal principles established

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  • An application for extension of time and an application for stay of execution or proceedings are separate and distinct; the latter cannot be competently made before the former is heard and granted.
  • Extension of time is a discretionary remedy available only to a deserving party, who must place plausible material before the court explaining the delay.

Court orders

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  1. 1.The application for extension of time is dismissed with costs to the 1st respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 82

Cases cited (5)

  • Abdulrazak Rageh Haji v. Mahadho Abdulrazak Adichare
    CA No. E030 of 2020

    Extension of time and stay applications are separate and distinct; stay cannot be made before extension is granted

  • Vishnu Stone Suppliers Co Ltd v. RSR Stone (2006) Ltd
    [2020] eKLR

    Principles guiding the court in an application for extension of time

  • George Mwenda Muthuri v. Mama Day Nurse & Primary School Ltd
    [2014] eKLR

    Principles guiding the court in an application for extension of time

  • Imperial Bank Ltd (In Receivership) & Another v. Alnashir Popat & 18 Others
    [2018] eKLR

    Statement of the considerations relevant to extension of time

  • Nicholas Kiptoo arap Korir Salat v. IEBC & 7 others
    [2014] eKLR

    Extension of time is a discretionary remedy available only to a deserving party

On appeal from
Environment & Land Court of Kenya at Chuka
ELCC No. 188 of 2017
Jurisdiction invoked
Rule 82 of the Court of Appeal Rules (extension of time to file notice and record of appeal), heard by a single judge

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Mucwa v Makembo & 3 others", Case Analysis (2022). Civil Application 87 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1006/eng@2022-09-23

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