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Court of AppealDismissedCivil Application 97 of 2019· [2022] KECA 1197 (KLR)

Keen & 7 others v Wanjohi (Sued as the administratix of the Estate of the late Francis Wanjohi Ndirangu)

Court of Appeal
12 October 2022
1,872 words in judgment
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The bottom line

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The Court of Appeal refused to revive a six-year-late land appeal because the applicants could not satisfactorily explain the delay.

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 Nakuru (L.A. Achode JA) on a notice of motion dated 24 June 2019 brought under Rule 4 of the Court of Appeal Rules, seeking extension of time to lodge an appeal against a High Court ruling (W. Ouko J, HCCC No. 56 of 2008) that dismissed the applicants' claim under section 38 of the Limitation of Actions Act for adverse possession as res judicata. The applicants sought extension of time, and deeming of a notice of appeal filed 20 February 2013 and a record of appeal filed 6 May 2016 as properly lodged. They attributed the delay to the untraceable High Court file and the Deputy Registrar's refusal to issue a certificate of delay. The respondent countered that the delay of over six years was inordinate and unexplained, that no such communication existed, and that the certificate of delay had been available since 28 May 2015. The court applied the settled Rule 4 parameters from Leo Sila Mutiso v Hellen Wangari Mwangi, Mwangi v Kenya Airways Ltd, Andrew Kiplagat Chemaringo and Athuman Nusura Juma. It found the delay of approximately six years and five months inordinate, the applicants' explanation unsupported by any attached correspondence and therefore not plausible or satisfactory, and held that the respondent would be more prejudiced by an extension. The application was dismissed with costs. The decision is not binding precedent on the merits of the underlying land dispute; it binds only insofar as it applies the established Rule 4 principles to these applicants.

Key legal issues

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01

Whether the applicants' explanation for the delay was plausible and satisfactory

Holding

The delay of approximately six years and five months was inordinate and unexplained; the applicants produced no correspondence supporting their claim that the court file could not be traced, and the certificate of delay was available for collection

Reasoning

The applicants alleged the High Court file could not be traced and that the Deputy Registrar refused to issue a certificate of delay, but attached no correspondence to support this. The respondent deposed and attached a certificate of delay showing proceedings were supplied on 28 May 2015. The court found the explanation implausible and unsatisfactory.

02

Whether the intended appeal was arguable

Holding

The court applied the 'possibly arguable' standard but did not find the appeal arguable enough to outweigh the inordinate, unexplained delay

Reasoning

The applicants asserted the appeal had overwhelming chances of success and attached a memorandum of appeal. The court invoked Athuman Nusura Juma, noting that a single judge does not finally determine merits and the test is whether the appeal is 'possibly' arguable. The balancing of prejudices favoured the respondent.

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Balancing competing interests of the parties

Holding

The respondent would be more prejudiced by the grant of an extension than the applicants would be by its denial

Reasoning

The court weighed the injustice to the applicants of denying extension against the prejudice to the respondent, who had fought for over 30 years for the land. Given the inordinate unexplained delay, the balance tipped against the applicants, who failed to demonstrate the Mutiso parameters.

p. 4

Legal principles established

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  • The factors for extension of time under Rule 4 are not exhaustive; a single judge may consider any relevant factor outside the listed ones if the discretion is exercised judicially
  • There is no minimum or maximum period of delay; any delay must be satisfactorily explained
  • A single judge does not determine with finality whether an intended appeal has merits; the arguability consideration is prefixed with the word 'possibly'

Court orders

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  1. 1.The application for extension of time is dismissed with costs

Authorities

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Legislation

  • Court of Appeal Rules (Cap. 9 sub-leg)Rule 4
  • Limitation of Actions Actsection 38

Cases cited (4)

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

    Locus classicus on Rule 4 extension of time applications; parameters to be considered

  • Mwangi v Kenya Airways Ltd
    KLR 486

    The list of factors for extension of time is not exhaustive; single judge has unfettered discretion exercised judicially

  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR

    No minimum or maximum period of delay; delay must be satisfactorily explained

  • Athuman Nusura Juma v Afwa Mohamed Ramadhan
    CA No. 227 of 2015

    Merits of intended appeal not determined with finality by a single judge; 'possibly' arguable standard

On appeal from
High Court at Nakuru
HCCC No. 56 of 2008
Jurisdiction invoked
Rule 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, "Keen & 7 others v Wanjohi (Sued as the administratix of the Estate of the late Francis Wanjohi Ndirangu)", Case Analysis (2022). Civil Application 97 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1197/eng@2022-10-12

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