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Court of AppealPartially AllowedCivil Application E233 of 2022· [2022] KECA 1179 (KLR)

Nduati & 2 others v Malenya & another

Court of Appeal
21 October 2022
JMJohn M. Mativo
2,397 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 is a single-judge ruling of the Court of Appeal at Nairobi (Mativo, JA) on an application dated June 23, 2022 seeking extension of time to file and serve a memorandum and record of appeal against the judgment of the Environment and Land Court at Nairobi (Okong'o, J) delivered on November 10, 2021 in Milimani ELC Suit No. 1453 of 2002, in which the 1st respondent obtained a declaration that the registration of LR No. Nairobi Block 63/316 was unlawful, null and void, with cancellation and compensation reliefs. The applicants explained that they filed a notice of appeal in time, bespoken proceedings, and that the delay of 172 days beyond the statutory 60-day period was caused by the trial court registry, which only released the proceedings on May 31, 2022, with a certificate of delay issued on June 14, 2022. The respondents opposed, contending the notice of appeal was served out of time and was invalid, and sought striking out. The court held that the proviso to rule 86 of the Court of Appeal Rules, 2022 bars striking-out applications brought more than 30 days after service of the notice of appeal, and the respondents had not complied with it. Applying the Salat guidelines and the Fakir Mohamed factors, the court found the delay excusable and attributable to the registry, not the applicants. The application was allowed and the intended appeal was ordered to be filed and served within 14 days. No costs order was pronounced.

Key legal issues

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01

Timeliness of the application to strike out the notice of appeal

Holding

The respondents' striking-out application was barred by the proviso to rule 86 as it was not brought within 30 days of service of the notice of appeal.

Reasoning

The court noted the proviso to rule 86 of the Court of Appeal Rules, 2022, which prohibits an application to strike out a notice of appeal or an appeal after 30 days from service of the notice or record of appeal. The respondents never acted in accordance with that provision, so the objection failed.

p. 3
02

Whether the delay in filing the memorandum and record of appeal was excusable

Holding

The delay in obtaining certified proceedings and judgment was excusable and could not be faulted on the applicants; extension of time was granted.

Reasoning

The court distinguished excusable (unforeseeable, beyond the party's control) from non-excusable delays. The applicants lodged a notice of appeal in time, bespoked proceedings, and the delay was attributable to the court registry, which only made proceedings available on May 27, 2022, with a certificate of delay issued on June 14, 2022. Applying the Salat and Fakir Mohamed factors, the delay was explained and the discretion was exercised in the applicants' favour.

Legal principles established

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  • An applicant for extension of time must show good and substantial reasons for the delay and prima facie good cause why the intended appeal should be heard.
  • An application to strike out a notice of appeal or an appeal cannot be brought after expiry of 30 days from the date of service of the notice or record of appeal.
  • A satisfactory explanation for each period of delay is required; an unsatisfactory explanation for any period is normally fatal irrespective of prospects of success.

Court orders

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  1. 1.The applicants' application dated June 22, 2022 is allowed
  2. 2.The intended appeal be filed and served within 14 days from the date of the ruling

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal Rules, 2022Rule 86 (proviso)

Cases cited (6)

  • Fakir Mohamed v Joseph Mugambi & 2 others
    [2005] e KLR

    Factors relevant in extension of time applications; factors are relevant but not exhaustive.

  • Andrew Kiplangat Chemaringo v Paul Kipkorir Kibet
    [2018] e KLR

    No minimum or maximum period of delay; plausible and satisfactory explanation unlocks the court's discretion.

  • Silas Kanyolu Mwatha v Joseph Kavive James
    Civil App No 19 of 2021
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    {2014} e KLR

    Considerations guiding discretion to extend time.

  • M/S Portreitz Maternity v James Karanga Kabia
    Civil Appeal No 63 of 1997

    Right of appeal must be balanced against the plaintiff's right to enjoy the fruits of judgment.

  • National Union of Mineworkers v Council for Mineral Technology
    [1998] ZALAC 22

    Discretion to be exercised judicially on all facts; explanation, lateness, prospects and importance are interrelated.

On appeal from
Environment and Land Court at Nairobi
Milimani ELC Suit No. 1453 of 2002
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (extension of time jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nduati & 2 others v Malenya & another", Case Analysis (2022). Civil Application E233 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1179/eng@2022-10-21

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