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Court of AppealAllowedCivil Application E028 of 2022· [2022] KECA 1287 (KLR)

Sketty (Administrator of Estate of Nassor Mohamed Nahdy (Deceased) v Shah & 3 others

Court of Appeal
18 November 2022
SKS. Gatembu Kairu
1,101 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that appeal deadlines run from when a certificate of delay is actually issued, giving late applicants a second chance.

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 (SG Kairu, JA) on an application dated 9th May 2022 seeking leave to file and serve a memorandum and record of appeal out of time from the judgment of the Environment and Land Court (Yano, J) delivered on 9th March 2021 in ELC Case No. 233 of 2009, in which the ELC allowed the 1st respondent's suit, dismissed the deceased's counterclaim, and ordered removal of constructions from the suit property. The applicant, personal representative of the deceased, lodged a notice of appeal on 22nd March 2021 and requested typed proceedings on 16th March 2021. The Deputy Registrar issued a certificate of delay on 14th March 2022 certifying that the period from 16th March 2021 to 11th February 2022 was required to prepare the proceedings. The court held that although the proviso to Rule 84 excludes certified time, it is unclear how an applicant benefits where the certificate itself is issued late, and presumed that a certificate should issue immediately the proceedings are ready. Computing the 60 days from the actual date of issue of the certificate (14th March 2022), the application lodged on 10th May 2022 was in time. Applying the Salat discretion principles, the court allowed the application, directed filing and service of the record of appeal within 21 days, and ordered costs of the application to abide the outcome of the intended appeal. The intended appeal itself remains to be heard; the ELC judgment was not disturbed.

Key legal issues

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01

Computation of time where the certificate of delay is issued late

Holding

The 60 days are taken to run from the date the certificate of delay was actually issued (14th March 2022), so the application lodged on 10th May 2022 was in time.

Reasoning

Although the proviso to Rule 84 excludes time certified by the registrar as required for preparing proceedings, the court found it unclear how an applicant benefits where the certificate itself is delayed. The court presumed the certificate should issue immediately the proceedings are ready, and therefore computed the 60 days from the actual date of issue, making the application timely.

p. 2
02

Exercise of discretion to extend time

Holding

Applying the Salat principles, the court was satisfied this was a proper case to exercise discretion in the applicant's favour.

Reasoning

The court considered the application, affidavits, submissions and authorities, and applied the principles in Nicholas Kiptoo Arap Korir Salat v IEBC. Satisfied by the explanation regarding the certificate of delay and the computation of time, it allowed the application and granted 21 days to file the record of appeal.

p. 3

Legal principles established

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  • Where a certificate of delay is issued late, the 60-day period for filing the record of appeal is presumed to begin running from the date the certificate was actually issued, not the date the proceedings were ready.

Court orders

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  1. 1.Application allowed in terms of prayer 1
  2. 2.Applicant directed to file and serve his memorandum and record of appeal within 21 days from the date of delivery of the ruling
  3. 3.Costs of the application to abide by the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 84 (proviso)

Cases cited (1)

  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others
    Supreme Court Application No 16 of 2014 [2014] eKLR

    Legal principles governing exercise of discretion in extension-of-time applications

On appeal from
Environment and Land Court at Mombasa
ELC Case No. 233 of 2009
Jurisdiction invoked
Rule 84 of the Court of Appeal Rules (proviso) - discretion to extend time for filing memorandum and record of appeal

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, "Sketty (Administrator of Estate of Nassor Mohamed Nahdy (Deceased) v Shah & 3 others", Case Analysis (2022). Civil Application E028 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1287/eng@2022-11-18

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