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Court of AppealAllowedCivil Application 77 of 2020· [2022] KECA 1015 (KLR)

Njeri Kibiru & 4 others v Ali

Court of Appeal
23 September 2022
KMK M'Inoti
1,041 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was a single-judge application under rule 4 of the Court of Appeal Rules seeking extension of time to file a record of appeal out of time against the judgment and decree of the Environment and Land Court at Nyeri (Waithaka, J.) dated February 2019 in ELCC No. 83 of 2016, concerning land parcel Gatarakwa/Gatarakwa Block 3/523. The applicants contended the court below erroneously treated the parcel as re-parcelled, affected it without hearing the registered owner, and that the suit was filed against a deceased defendant. The notice of appeal and request for certified proceedings were filed within the prescribed time; the delay arose from a change of advocates and the illness of the new advocate, Mr Ndirangu, who was unwell through much of 2020. The respondent was served but filed neither a replying affidavit nor submissions, so the application was treated as unopposed. Applying the Fakir Mohamed v Joseph Mugambi factors, M'inoti, JA held that although the delay was inordinate, the explanation was accepted as uncontroverted; the intended appeal was not frivolous; and, absent any response, no prejudice to the respondent could be established. The court allowed the application and directed the applicants to file and serve the record of appeal within 21 days, with costs of the application to abide the outcome of the appeal. The ruling restates the well-settled, unfettered but judicious discretion under rule 4 and the non-exhaustive relevant factors.

Key legal issues

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Extension of time under rule 4 of the Court of Appeal Rules

Holding

The discretion is wide and unfettered; where the notice of appeal and request for proceedings were filed in time, and the delay is explained by change of advocates and advocate's illness, uncontroverted by the respondent, extension should be granted.

Reasoning

The court applied the Fakir Mohamed v Joseph Mugambi factors: length of and reason for delay, chances of success, and prejudice. The notice of appeal and letter bespeaking proceedings were timely; the delay arose from change of advocates and the new advocate's illness. The respondent neither filed a replying affidavit nor submissions, so the explanation stood uncontroverted and no prejudice was shown.

p. 2

Legal principles established

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  • The discretion to extend time under rule 4 is wide and unfettered but must be exercised judiciously, weighing relevant factors including delay, reasons, chances of success and prejudice.

Court orders

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  1. 1.Extension of time granted to file and lodge the record of appeal
  2. 2.Applicants directed to file and serve the record of appeal within 21 days from the date of the ruling

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (1)

  • Fakir Mohamed v Joseph Mugambi & 2 others
    CA No Nai 332 of 2004

    Factors relevant in an application for extension of time under rule 4.

On appeal from
Environment & Land Court of Kenya at Nyeri
ELCC No. 83 of 2016
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, "Njeri Kibiru & 4 others v Ali", Case Analysis (2022). Civil Application 77 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1015/eng@2022-09-23

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