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Court of AppealDismissedCivil Application E056 of 2022· [2022] KECA 1027 (KLR)

Mutoro v Machiri & 2 others

Court of Appeal
23 September 2022
1,680 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicant gave no believable reason for a four-month delay and had not filed a notice of appeal.

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 Kisumu (Mumbi Ngugi JA) on an application dated April 4, 2022 by Francis Juma Mutoro seeking extension of time to appeal out of time against the judgment of the Environment and Land Court at Bungoma (Olao J) delivered on November 4, 2021 in ELC Case No. 17 of 2009, together with a stay of execution. The applicant claimed neither he nor his counsel knew of the judgment, originally scheduled for October 5, 2021, until March 31, 2022. The application was unopposed; no respondents filed a response or submissions. The Court held that the stay of execution prayers were premature because stay under Rule 5(2)(b) requires a notice of appeal to have been lodged, and none had been. On extension of time under Rule 4, the Court applied the Leo Sila Mutiso principles. It found the approximately four-month delay unexplained: the applicant knew the original delivery date, made no enquiries, his advocate did not swear an affidavit, the judgment was emailed to other parties' firms, and his own Certificate of Urgency demonstrated awareness of developments in the suit. Continuing prejudice to the 1st respondent, kept out of the suit land for over ten years, weighed against the applicant, and a cursory review of the draft grounds disclosed no sufficient reason to exercise discretion. The application was dismissed with no order as to costs. No appeal has yet been filed; the intended appeal remains unprosecuted unless the applicant pursues other remedies.

Key legal issues

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01

Jurisdiction to grant stay before lodging a notice of appeal

Holding

Stay of execution under Rule 5(2)(b) is unavailable where no notice of appeal has been lodged; the prayer is premature and must fail.

Reasoning

Rule 5(2)(b) conditions the stay power on a notice of appeal having been lodged under rule 75. The applicant sought extension of time and neither averred that a notice of appeal had been filed nor attached one, so the threshold condition for the Court's stay jurisdiction was absent.

p. 2
02

Plausibility of the explanation for delay

Holding

The applicant's claim that neither he nor his counsel knew of the judgment until March 31, 2022 was not plausible.

Reasoning

The applicant knew judgment was due October 5, 2021 yet made no enquiry for four months; his advocate did not swear an affidavit supporting the claim; the Certificate of Delivery of Judgment showed judgment emailed to other firms; and his own Certificate of Urgency showed awareness of developments affecting the 2nd respondent, undermining his assertion of ignorance.

p. 3
03

Prejudice to the respondent and chances of success

Holding

The 1st respondent, kept out of the suit land for over ten years, would suffer continuing prejudice, and the draft grounds did not suffice to justify the discretion.

Reasoning

The matter began in 2009; the plaintiff had been out of the suit land for over a decade, and the argument that he would be heard on appeal did not answer that prejudice. A cursory comparison of the six draft grounds with the trial judgment did not disclose sufficient reason to exercise discretion in the applicant's favour, though without a definitive merits conclusion.

p. 3

Legal principles established

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  • The Court cannot exercise jurisdiction to grant a stay of execution under Rule 5(2)(b) unless a notice of appeal has been properly lodged.
  • Extension of time under Rule 4 is governed by the Leo Sila Mutiso principles: length of delay, reasons for delay, prejudice to the respondent and (possibly) the chances of success of the appeal.

Court orders

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  1. 1.The application dated April 4, 2022 is dismissed
  2. 2.No order as to costs, there having been no response to the application

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75

Cases cited (1)

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

    Principles for extension of time: length of delay, reasons for delay, prejudice to respondent and possibly chances of success

On appeal from
Environment and Land Court at Bungoma
ELC Case No. 17 of 2009
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time); section 5(2)(b) of the Court of Appeal Rules cited for stay

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, "Mutoro v Machiri & 2 others", Case Analysis (2022). Civil Application E056 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1027/eng@2022-09-23

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