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Court of AppealAllowedCivil Application 111 (UR 76 of 2019) of 2019· [2022] KECA 1436 (KLR)

Mbicari v Njue

Court of Appeal
14 October 2022
WKW Karanja
911 words in judgment
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The bottom line

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Kenya's Court of Appeal gave an elderly man two extra months to appeal his eviction, showing short, explained delays can be forgiven.

What this practically means

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Executive summary

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This is a single-judge (W Karanja, JA) ruling of the Court of Appeal at Nyeri on an unopposed application by Josphat Mbicari for extension of time to file an appeal out of time against the judgment of Angima, J of the Environment and Land Court at Embu in ELC Case No. 168 of 2014. The applicant, a defendant below, had been ordered evicted from parcel Mbeti/kiamuringa/1815 in favour of Irene Weveti Njue, a purchaser for value who alleged he was a trespasser. The applicant, an elderly man appearing in person and describing himself as indigent, failed to file a notice of appeal within the 14-day period prescribed by the Court of Appeal Rules, and applied some two months later, claiming the judgment left him distraught and unwell. The respondent, though served, filed neither a replying affidavit nor submissions. Applying the well-established Leo Sila Mutiso principles - length of delay, reason for delay, arguability of the appeal, and prejudice to the respondent - the court held that a delay of about two months was not inordinate, the explanation was plausible given the applicant's age and threatened eviction, and the draft grounds of appeal raising a trust claim over family land were not frivolous. The court found merit in the application, allowed it with no order as to costs, granted leave to file and serve the notice of appeal within 14 days, and the record of appeal within 30 days thereafter. The decision below was not disturbed at this interlocutory stage.

Key legal issues

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01

Whether the two-month delay in filing the notice of appeal was excusable

Holding

The delay of about two months was not inordinate and the explanation - the elderly indigent applicant's shock at facing eviction - was plausible and sufficient.

Reasoning

The court accepted the applicant's uncontroverted affidavit evidence that, as an elderly man facing eviction from land he had long occupied, he lacked presence of mind to file in time. The delay was short, unopposed, and the respondent filed no submissions or replying affidavit.

p. 2
02

Whether the intended appeal was arguable

Holding

The draft grounds of appeal raised an arguable issue of trust over family land; the appeal was not frivolous and the applicant deserved his day in court.

Reasoning

The court read the impugned judgment and noted the applicant's claim that the suit property was family land on which he and his family lived even at the time of sale to the respondent. On that basis the appeal was not frivolous, satisfying the third Mutiso principle.

p. 2

Legal principles established

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  • In deciding whether to extend time for appealing, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

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  1. 1.Leave granted to the applicant to file and serve the Notice of Appeal within 14 days from the date of the ruling
  2. 2.The applicant to file and serve the record of appeal within 30 days from the date of filing the Notice of Appeal
  3. 3.No order as to costs

Authorities

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Legislation

  • Court of Appeal Rulesprescribed 14-day period for filing notice of appeal

Cases cited (3)

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

    Principles guiding extension of time: length of delay, reason, chances of success, prejudice to respondent.

  • Fakir Mohammed v Joseph Mugambi & 2 others
    (2005) eKLR

    Extension of time principles.

  • Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees
    [2020] eKLR

    Extension of time principles.

On appeal from
Environment and Land Court at Embu
ELC Case No. 168 of 2014 (Formerly HCC No. 49 of 2000)
Jurisdiction invoked
Court of Appeal Rules - application for extension of time to file a notice and record of appeal out of time

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, "Mbicari v Njue", Case Analysis (2022). Civil Application 111 (UR 76 of 2019) of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1436/eng@2022-10-14

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