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Court of AppealAllowedCivil Appeal (Application) 51 of 2019· [2022] KECA 1061 (KLR)

Wekesa (As the Legal Representative Of The Estate Of George Elam Wekesa) v Taib & 2 others

Court of Appeal
7 October 2022
JLJW Lessit
765 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a litigant one extra day to file his appeal record, showing courts will excuse minor delays with good reasons.

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 Mombasa (Lessit, JA) on a Notice of Motion dated 4th May 2022 brought under Rules 1(2) and 4 of the Court of Appeal Rules, seeking an extension of time to file a Record of Appeal against the ruling of the Environment and Land Court (Matheka, J) delivered on 6th December 2018 in ELC No. 454 of 2002 (O.S), and an order deeming the Record of Appeal as duly filed. The applicant explained that the delay arose because, upon lodging the record, the court directed a re-filing due to errors in documentation, leaving him late by a single day. A prior ruling of the Court of Appeal dated 18th March 2022 had struck out the memorandum and record of appeal for being filed out of time, but suspended the striking-out for 45 days to enable the applicant to move the court under Rule 4. The present application was brought within that window and was unopposed; counsel for the respondents did not appear at the virtual hearing despite service. Applying the settled criteria in Leo Sila Mutiso v Rose Hellen Wangari Mwangi - length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent - the court held the application merited in all the circumstances. It granted the motion in terms of prayers 1 and 2, directed service of the record on the respondents within 14 days, and awarded the applicant the costs of the application. The decision binds the Environment and Land Court and any lower tribunal in the proceedings.

Key legal issues

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01

Extension of time to file a record of appeal under Rule 4

Holding

The application for extension of time was merited where the delay was a single day caused by a court direction to re-file the record, the application was brought within time previously granted by the court, and it was unopposed.

Reasoning

The court applied the Mutiso criteria: length of delay, reason for delay, arguability and prejudice. The delay was one day attributable to a court direction to re-file the record due to documentation error. The prior ruling had suspended striking-out for 45 days to allow this application, which was made within that window. The application was unopposed and the court was satisfied the order was merited.

p. 2

Legal principles established

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  • In deciding an application to extend time for appealing, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent.

Court orders

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  1. 1.The Notice of Motion dated 4th May 2022 is granted in terms of orders 1 and 2 (extension of time to file the Record of Appeal and deeming the Record of Appeal as duly filed)
  2. 2.The applicant to serve the Record of Appeal upon the respondents within 14 days from the date of the ruling
  3. 3.The applicant to have the costs of the application

Authorities

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Legislation

  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 4

Cases cited (1)

  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    Civil Application No. Nairobi 251 of 1997 (unreported)

    Criteria for extension of time: length of delay, reason, chances of appeal succeeding, prejudice to respondent.

On appeal from
Environment and Land Court
ELC No. 454 of 2002 (O.S)
Jurisdiction invoked
Rules 1(2) and 4 of the Court of Appeal Rules

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, "Wekesa (As the Legal Representative Of The Estate Of George Elam Wekesa) v Taib & 2 others", Case Analysis (2022). Civil Appeal (Application) 51 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1061/eng@2022-10-07

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