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Court of AppealPartially AllowedCivil Application No. Nai. E043 of 2022 (as inferred from the motion; not expressly stated)· [2023] KECA 638 (KLR)

Sophia Wambui Kiurire v Beatrice Wangari Kimani

Court of Appeal of Kenya
3 February 2023
1,713 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed a late land appeal because delays were explained and the appellant wasn't careless—certificates of delay matter.

What this practically means

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Executive summary

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This was a single-Judge ruling of the Court of Appeal at Nyeri (Jamila Mohammed, JA) on a notice of motion dated January 3, 2022 brought under Rule 4 of the Court of Appeal Rules. The applicant, Sophia Wambui Kiurire, sought leave to appeal out of time against the judgment of the Environment & Land Court at Murang'a (J.G Kemei, J.) delivered on September 14, 2021 in ELC No. 42 of 2021 (O.S), an adverse possession claim over land parcel Loc. 8 Matharite/652, plus a stay of execution. The respondent, Beatrice Wangari Kimani, opposed, arguing there was nothing to stay before taxation of costs. Applying the settled Rule 4 factors from Fakir Mohamed v Joseph Mugambi - length of delay, reasons for delay, arguability, and prejudice - the Judge found the notice of appeal was lodged on September 30, 2021, one day out of time, and that the bulk of the delay was attributable to the 44 days the court took to prepare certified proceedings, as evidenced by the certificate of delay. The applicant was found not indolent, the intended appeal arguable, and no prejudice to the respondent was shown. Balancing the applicant's right of appeal against the respondent's right to enjoy the fruits of the judgment, the Judge allowed the motion: the notice of appeal was deemed duly filed, time to file and serve the memorandum and record of appeal was enlarged to sixty days, and costs were made to abide the outcome of the intended appeal. The stay of execution prayer was not determined, Rule 5(2)(b) applications requiring a three-Judge bench.

Key legal issues

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01

Extension of time under Rule 4

Holding

The application for extension of time was allowed: the delay was explained by the time taken to prepare certified proceedings (44 days per the certificate of delay), the applicant was not indolent, the intended appeal was arguable, and no prejudice to the respondent was demonstrated.

Reasoning

The single Judge applied the settled Rule 4 factors: length of delay, reasons for delay, arguability of the appeal and prejudice. The applicant filed a notice of appeal and bespokoned proceedings promptly; the certificate of delay accounted for most of the delay; the court balanced her right of appeal against the respondent's right to enjoy the fruits of the judgment and found no inordinate delay or indolence, so enlargement was warranted in the interests of justice.

p. 3
02

Timeliness of the notice of appeal

Holding

The notice of appeal, though dated September 24, 2021, was lodged on September 30, 2021, one day outside the fourteen-day period, and was deemed duly filed as part of the extension granted.

Reasoning

Rule 75 (now rule 77) requires a notice of appeal to be lodged within fourteen days of the decision. The judgment was delivered on September 14, 2021, so the deadline fell on September 29, 2021; lodging on September 30, 2021 was a day late. The single Judge deemed it filed under the extension of time granted.

p. 3
03

Competence of the stay of execution prayer before a single Judge

Holding

The stay of execution prayer could not be determined by a single Judge because stay applications under Rule 5(2)(b) are reserved for a three-Judge bench; the single Judge determined only the Rule 4 extension application.

Reasoning

The motion combined a Rule 4 extension prayer with a Rule 5(2)(b) stay prayer. The Judge noted the jurisdictional allocation: stay under Rule 5(2)(b) is for a full bench of three Judges, while the extension of time application is for a single Judge, and proceeded only on the latter.

p. 2

Legal principles established

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  • In exercising its discretion under Rule 4 to extend time, the court considers the length of the delay, the reasons for the delay, the possibility of the appeal succeeding, and the prejudice to the parties, and must act judiciously
  • Extension of time should not be refused where the delay is explained, the appeal is arguable, and no prejudice is shown to the respondent
  • A notice of appeal must be lodged within fourteen days of the decision appealed against, per rule 75 (now rule 77) of the Court of Appeal Rules

Court orders

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  1. 1.That the notice of appeal filed on September 30, 2021 be deemed as duly filed
  2. 2.That the time within which to file and serve the memorandum of appeal and record of appeal is enlarged
  3. 3.That the applicant has sixty (60) days to file and serve the memorandum of appeal and record of appeal from the date of this ruling
  4. 4.The costs of this application to abide the outcome of the intended appeal
On appeal from
Environment & Land Court
E.L.C No. 42 of 2021 (O.S), Murang'a
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension 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, "Sophia Wambui Kiurire v Beatrice Wangari Kimani", Case Analysis (2023). Civil Application No. Nai. E043 of 2022 (as inferred from the motion; not expressly stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/638/eng@2023-02-03

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