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Court of AppealAllowedCivil Application 145 of 2019· [2022] KECA 1432 (KLR)

Gichoya v Kibata & 2 others

Court of Appeal
14 October 2022
WKW Karanja
1,073 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a 9-day late appeal, confirming short, well-explained delays won't block your right to appeal.

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 Nyeri (W Karanja, JA) on a notice of motion dated 6 September 2019 brought under rule 4 of the Court of Appeal Rules 2010, seeking extension of time to file and serve an appeal out of time against a ruling of the Environment and Land Court at Kerugoya (E C Cherono, J) dated 14 June 2019 in ELC case no. 7 of 2016. The impugned ruling had found the applicant, an agent of the 2nd and 3rd respondents, to have committed trespass and, together with the 3rd respondent, guilty of contempt of orders issued on 16 June 2017, fining each Ksh 100,000 or six months' imprisonment in default. The applicant, who said he had purchased the suit land in 2005 and was never made a party to the suit or contempt proceedings, lodged a notice of appeal on 28 June 2019 and attributed the 9-day delay in filing to the late supply of typed proceedings on 2 September 2019. The respondents filed no response despite due service. Applying the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court held the 9-day delay not inordinate and well explained, and allowed the application with no order as to costs. The applicant was ordered to file and serve the record of appeal within 14 days, failing which the orders would automatically stand vacated. The court also counselled counsel on compliance with the rules on compilation of records.

Key legal issues

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01

Whether the 9-day delay in filing the appeal was inordinate

Holding

A 9-day delay is not inordinate by any standards, and the reason - proceedings supplied on 2 September 2019 - was well explained and excusable

Reasoning

The ruling was delivered on 14 June 2019 and the notice of appeal lodged on 28 June 2019. The last day for filing was 28 August 2019; the 9-day delay arose because typed proceedings were only supplied on 2 September 2019 despite being signed on 19 August 2019. The court found this delay excusable and not inordinate by any standards.

p. 2
02

Nature of the rule 4 discretion

Holding

The rule 4 discretion is wide and unfettered but must be exercised judicially and not whimsically, considering the peculiar circumstances of each case

Reasoning

The court reaffirmed the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi and Njuguna v Magichu, holding that the discretion under rule 4 of the Court of Appeal Rules is wide and unfettered, subject only to the requirement that it be exercised judicially rather than whimsically, with regard to each case's peculiar circumstances.

p. 2
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Effect of an unopposed application

Holding

An unopposed extension-of-time application may be allowed with no order as to costs

Reasoning

Although duly served, the respondents filed no response and the application was unopposed. The court allowed the application and made no order as to costs on that account, while still satisfying itself that the settled extension-of-time principles were met.

p. 3

Legal principles established

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  • Rule 4 discretion is wide and unfettered but must be exercised judicially, not whimsically, considering the peculiar circumstances of each case
  • Extension of time is governed by the settled factors of length of delay, reason for delay, chances of the appeal succeeding and prejudice to the respondent

Court orders

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  1. 1.Extension of time granted to file and serve the appeal out of time
  2. 2.Applicant to file and serve the record of appeal within 14 days from the date of the ruling, failing which the orders automatically stand vacated
  3. 3.No order as to costs as the application was not opposed

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rules 2010former rule 82 (presently rule 84)

Cases cited (3)

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

    Enunciating the settled guidelines for extension of time: length of delay, reason for delay, chances of success and prejudice to respondent

  • Mwangi v Kenya Airways Ltd
    [2003] eKLR

    Supporting the extension-of-time principles

  • Njuguna v Magichu & 73 others
    [2003] KLR 507

    Supporting the judicial exercise of the wide and unfettered rule 4 discretion

On appeal from
Environment and Land Court at Kerugoya
ELC case no. 7 of 2016
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Gichoya v Kibata & 2 others", Case Analysis (2022). Civil Application 145 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1432/eng@2022-10-14

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