Mulei v Njoroge & another (Civil Appeal (Application) E414 of 2022) [2023] KECA 857 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the notice of appeal was filed within time
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).
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.
Whether the delay in filing the record of appeal was sufficiently explained
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.
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.
Whether the respondents would suffer prejudice
Since the trial judgment was in favour of the respondents, the delay would prevent them from freely enjoying the fruits of their judgment.
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.
Legal principles established
#- 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
#- 1.The application is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.