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Court of AppealDismissedCivil Application (as stated in motion dated October 28, 2022)· [2023] KECA 857 (KLR)

Mulei v Njoroge & another (Civil Appeal (Application) E414 of 2022) [2023] KECA 857 (KLR)

Court of Appeal of Kenya
7 July 2023
1,393 words in judgment
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The bottom line

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The Court of Appeal dismissed a widow's bid to extend time to appeal because she lacked a certificate of delay and proof she served her request for court proceedings.

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 Nairobi delivered by Okwengu, JA on July 7, 2023, on a motion dated October 28, 2022 in which Grace John Mulei sought extension of time to file a memorandum of appeal and the record of appeal against an Environment and Land Court judgment of May 4, 2022, which granted the respondents possession of 5 acres within Plot No 26 Kitanga Settlement Scheme and her eviction. The applicant filed a notice of appeal on May 17, 2022 (within the 14 days under Rule 75(2)) but did not lodge the record of appeal within the 60 days allowed by Rule 82(1). She attributed the delay to late supply of certified proceedings and her financial constraints as a widow of advanced age. The Court applied the established factors from Leo Sila Mutiso v Hellen Wangari Mwangi: the length of the delay, the reason for it, and the prejudice to the respondent. It found the explanation inadequate because the applicant did not produce a certificate of delay signed by the Registrar nor evidence that she served the request for proceedings on the respondents, as required by the proviso to Rule 82; her claim of financial hardship was unsupported by any evidence of her age or circumstances; and the delay would deprive the respondents of the fruits of their judgment. The application was dismissed with costs.

Key legal issues

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01

Whether the notice of appeal was filed within time

Holding

The notice of appeal filed on May 17, 2022, being the 13th day after the judgment of May 4, 2022, was within the 14 days allowed by Rule 75(2).

Reasoning

Rule 75(2) of the Court of Appeal Rules 2010 requires a notice of appeal to be filed within 14 days of the decision. Counting from the date of delivery of the ELC judgment, the applicant's notice fell on the 13th day and was therefore filed within time. The 1st respondent's contention that the notice was out of time or wrongly filed in the lower court did not persuade the Court on this single-judge application.

p. 3
02

Whether the delay in filing the record of appeal was sufficiently explained

Holding

The delay of about 5½ months was not satisfactorily explained: no certificate of delay signed by the Registrar was produced, and no evidence of service of the request for proceedings on the respondents was availed.

Reasoning

Although the applicant produced letters showing she requested typed proceedings on May 30, 2022 and received them on October 4, 2022, she failed to comply with the proviso to Rule 82, which requires evidence of service of the request and a certificate of delay signed by the Registrar. The Court also found the plea of financial hardship unproven, as nothing was laid before the Court to confirm her age or financial circumstances.

p. 3
03

Whether the respondents would suffer prejudice

Holding

Since the trial judgment was in favour of the respondents, the delay would prevent them from freely enjoying the fruits of their judgment.

Reasoning

The Court reasoned that prejudice is assessed against the reality that the judgment below was in the respondents' favour granting possession and eviction. An extension of time would delay enforcement of that judgment. The applicant's assertion that no prejudice would be suffered was rejected, particularly as she had not demonstrated any statutory compliance excusing the delay.

p. 3

Legal principles established

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  • In deciding whether to grant an extension of time, the Court considers the length of the delay, the reason for the delay, and the degree of prejudice the respondent may suffer if the application is granted
  • Rule 4 confers an unfettered discretion on the Court to extend time for doing any act required by the Rules, but the applicant must meet the threshold, including compliance with the proviso to Rule 82 regarding certificate of delay
  • A party claiming delay caused by late supply of typed proceedings must produce a certificate of delay duly signed by the Registrar and evidence of service of the request for proceedings on the other side

Court orders

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  1. 1.The application is dismissed with costs

Authorities

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Legislation

  • Court of Appeal Rules 2010Rule 4
  • Court of Appeal Rules 2010Rule 75(2)
  • Court of Appeal Rules 2010Rule 82(1) and proviso to Rule 82
  • Court of Appeal RulesRules 77, 78 and 79

Cases cited (2)

  • Ngei vs Kibe & another (Civil Appeal (Application) E359 of 2021) [2021] KECA 243 (KLR)
    [2021] KECA 243 (KLR)
  • Leo Sila Mutiso vs Hellen Wangari Mwangi
    1999 2EA 231
On appeal from
Environment and Land Court (ELC)
null
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend 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, "Mulei v Njoroge & another (Civil Appeal (Application) E414 of 2022) [2023] KECA 857 (KLR)", Case Analysis (2023). Civil Application (as stated in motion dated October 28, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/857/eng@2023-07-07

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