Keen & 7 others v Wanjohi (Sued as the administratix of the Estate of the late Francis Wanjohi Ndirangu)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicants' explanation for the delay was plausible and satisfactory
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
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.
Whether the intended appeal was arguable
The court applied the 'possibly arguable' standard but did not find the appeal arguable enough to outweigh the inordinate, unexplained delay
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.
Balancing competing interests of the parties
The respondent would be more prejudiced by the grant of an extension than the applicants would be by its denial
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.
Legal principles established
#- 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
#- 1.The application for extension of time is dismissed with costs
- On appeal from
- High Court at Nakuru
- HCCC No. 56 of 2008
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.