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Court of AppealAllowedCivil Application E086 of 2021· [2022] KECA 1086 (KLR)

Ahmed & another v Sketty & another

Court of Appeal
7 October 2022
JLJ.W. Lessit
1,901 words in judgment
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The bottom line

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Kenya's Court of Appeal gave property owners more time to appeal because they were never told their case ruling had been delivered.

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 an application under Rule 4 of the Court of Appeal Rules for extension of time to file and serve a Notice of Appeal against a ruling of the High Court (Onyiego, J) delivered on 31st August 2021 in Mombasa High Court Succession Cause No. 24 of 1966. The applicants, who had sought revocation of a grant of administration, said the ruling was delivered six months after the scheduled date, during the court vacation, and without notice to them; they learned of it only when the 1st respondent moved to claim the suit property. The 1st respondent opposed, arguing a three-month delay was inordinate and that the ruling had already been executed by registration of the suit property. The court restated the governing principles from the Supreme Court's Salat decision and its own Rule 4 jurisprudence: the discretion is unfettered but must be grounded on reason, weighing the length of and reasons for delay, prejudice, and the 'possibly arguable' standard for the intended appeal, which a single judge does not determine with finality. Finding the respondents had not contested the lack of notice, and noting the 1st respondent's counsel was present at delivery but never notified the applicants' counsel, the court held the delay excusable and the applicants not to blame. The application was allowed; the Notice of Appeal was to be filed within 21 days and served within 7 days, with costs to the applicants. The decision below was not disturbed; this ruling concerns only appellate access.

Key legal issues

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01

Whether the delay in filing the Notice of Appeal was excusable

Holding

The delay was excusable because the applicants were given no notice of the delivery of the ruling and were not to blame for the delay.

Reasoning

The ruling was delivered six months after the scheduled date and without notice to the applicants, though the 1st respondent's counsel was present. The court found the respondents did not contest the lack of notice, and that the 1st respondent's counsel failed to notify the applicants' counsel of the ruling date either before or after delivery. The applicants only learned of the ruling when the 1st respondent moved to claim the suit property.

p. 4
02

The applicable principles for extension of time under Rule 4

Holding

The court's discretion under Rule 4 is unfettered but must be grounded on reason, considering the length and reason for delay, prejudice, arguability and other relevant factors.

Reasoning

The court restated the Salat principles and its own Rule 4 jurisprudence: there is no limit to relevant factors, including the period of and reasons for delay, prejudice to the respondent, chances of the appeal succeeding, effect on public administration, importance of compliance with time limits and the parties' resources. Arguability is assessed only on a 'possibly arguable' basis by a single judge.

p. 3

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the court's discretion, and the applicant bears the burden of explaining the delay.
  • A single judge does not definitively determine the merits of an intended appeal when considering extension of time.

Court orders

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  1. 1.The application dated 10th November 2021 is allowed in terms of order 2 thereof (extension of time to file the Notice of Appeal)
  2. 2.The applicants to file the Notice of Appeal within 21 days of the date of the ruling and serve it within 7 days of filing
  3. 3.The applicants to have the costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Appellate Jurisdiction ActSections 3, 3A & 3B
  • Court of Appeal RulesRule 4 (now Rule 44)
  • Court of Appeal RulesRule 75 (now Rule 77)

Cases cited (7)

  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    [1999] 2 EA 231

    Principles for extension of time applications

  • Fakir Mohamed vs. Joseph Mugambi & 2 Others
    [2005] eKLR

    Principles for extension of time applications

  • Muringa Company Ltd vs. Archdiocese of Nairobi Registered Trustees
    [2020] eKLR

    Principles for extension of time applications

  • Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet
    [2018] eKLR

    Principles for extension of time applications

  • Athuman Nusura Juma vs. Afwa Mohamed Ramathan
    CA No. 227 of 2015

    Single judge does not determine merits of intended appeal with finality; 'possibly arguable' standard

  • Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR

    Restated principles governing extension of time

  • Imperial Bank Limited (In Receivership) & another v. Alnasir Popat & 18 Others
    [2018] eKLR

    Considerations for extension of time including delay, prejudice, conduct and arguability

On appeal from
High Court at Mombasa
High Court Succession Cause No. 24 of 1966
Jurisdiction invoked
Section 3, 3A & 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules; Article 159(2)(d) of the Constitution

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, "Ahmed & another v Sketty & another", Case Analysis (2022). Civil Application E086 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1086/eng@2022-10-07

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