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Court of AppealPartially AllowedCivil Application E066 of 2022· [2022] KECA 1042 (KLR)

Tanui & 6 others v Talam

Court of Appeal
23 September 2022
MNMumbi Ngugi
1,882 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed seven family members to appeal late because they were never properly notified that the judgment had been delivered.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Mumbi Ngugi JA) on a notice of motion dated 11th May 2022 by seven applicants seeking leave to file and serve a notice of appeal out of time against the judgment and decree of the High Court at Eldoret in Succession Cause No. 175 of 2010, delivered on 10th February 2022 by Nyakundi J. The judgment had originally been scheduled for delivery on 15th December 2021 but was delivered almost two months later, with a notice dated 9th February 2022 placed on the court notice board and allegedly served by telegram only the day before delivery. The applicants said they learned of the judgment only on 27th April 2022 and filed the application about two weeks later, a delay of roughly three months from the judgment. The respondent opposed, contending the delay was unexplained and that the succession cause, filed in 2010, needed finality. Applying the Rule 4 test from Leo Sila Mutiso v Hellen Wangari Mwangi (length of delay, reasons for delay, and possibly chances of success), and following Ngoso General Contractors Ltd v Jacob Gichunge on the requirement of notice of delivery of judgment to all parties, the court held the delay was not inordinate and the explanation plausible, finding the registry's notice inadequate in the Covid period when court functions had gone virtual. The application was allowed; the notice of appeal was deemed duly filed and served; the applicants were given 45 days to file their appeal; and there was no order as to costs.

Key legal issues

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01

Whether the delay of about three months in filing the notice of appeal was excusable

Holding

The delay was not inordinate and the applicants gave a plausible explanation, having learned of the judgment only on 27th April 2022 and filed the application about two weeks later.

Reasoning

The judgment was delivered almost two months after the scheduled date, with notice placed on the court notice board and sent by telegram only the day before delivery, during the Covid period when court functions had gone virtual. The applicants averred they were not served. Given these circumstances, the three-month delay was not inordinate and the explanation was plausible.

p. 4
02

Whether notice placed on the court notice board constituted adequate notice of delivery of judgment

Holding

Such notice as was given by the court registry was inadequate in the circumstances, following Ngoso General Contractors Ltd v Jacob Gichunge which required notice of delivery of judgment to be given to all parties or their advocates.

Reasoning

The court applied Ngoso General Contractors, which held that a judgment not delivered ex tempore must be delivered on a subsequent date only upon notice to all parties or their advocates. Here only the successful party's advocate had prior knowledge, and the notice board posting and telegram sent the day before delivery during the Covid period were insufficient to alert the applicants.

p. 4

Legal principles established

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  • Rule 4 confers an unfettered discretion on the Court to extend time, exercised by considering the length of the delay, the reasons for the delay and possibly the chances of success of the appeal.
  • A judgment not delivered ex tempore must be delivered on a subsequent date only upon notice to all parties or their advocates; notice placed on the court notice board and sent by telegram the day before delivery during the Covid period may be inadequate.

Court orders

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  1. 1.The application dated 11th May 2022 is allowed
  2. 2.The applicants are granted leave to file their notice of appeal out of time
  3. 3.The notice of appeal dated 11th May 2022 attached to the application is deemed as duly filed and served
  4. 4.The applicants shall file their appeal within 45 days
  5. 5.There shall be no order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 159
  • Appellate Jurisdiction Act, Cap 9Section 3A(1)(2)
  • Appellate Jurisdiction Act, Cap 9Section 3B(1)
  • Appellate Jurisdiction Act, Cap 9Section 7
  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 103

Cases cited (2)

  • Ngoso General Contractors Ltd v Jacob Gichunge
    [2005] eKLR

    A judgment not delivered ex tempore must be delivered on a subsequent date only upon notice to all parties or their advocates; failure to consider service of notice of delivery is a misdirection.

  • Leo Sila Mutiso vs Hellen Wangari Mwangi
    (1999) 2 EA 231

    Factors for extension of time under Rule 4: length of delay, reasons for delay and possibly chances of success of the appeal.

On appeal from
High Court of Kenya at Eldoret
Succession Cause No. 175 of 2010
Jurisdiction invoked
Section 3A(1)(2), 3B(1) and 7 of the Appellate Jurisdiction Act, Cap 9; Rules 4 and 103 of the Court of Appeal Rules, 2010; articles 48 and 159 of the Constitution of Kenya, 2010

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, "Tanui & 6 others v Talam", Case Analysis (2022). Civil Application E066 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1042/eng@2022-09-23

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