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Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment· [2023] KECA 1195 (KLR)

Grace Wanjiku Kiarie & 3 others v Lands Registrar Nakuru & 4 others

Court of Appeal of Kenya
6 October 2023
2,042 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 dismissed an out-of-time appeal because the applicant gave no evidence explaining her delay.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru, delivered by W. Korir, JA, sitting as a single judge, on a notice of motion dated January 10, 2023 in which the applicant sought, among other prayers, leave to appeal out of time against a ruling of Njoroge J of the Environment and Land Court delivered on October 4, 2022. The judge first noted that the application had been erroneously brought under Order 42 rule 6 and Order 41 rule 1 of the Civil Procedure Rules, sections 3 and 3A of the Civil Procedure Act, and article 146 of the Constitution, reminding counsel that in the Court of Appeal proceedings are governed by the Court of Appeal Rules, 2022, and that invoking the wrong jurisdictional provisions is not a technicality curable under Article 159. Sitting as a single judge, the judge considered only the Rule 4 prayer for extension of time. Framing two issues - whether the delay was inordinate and whether sufficient reason for it was tendered - the judge found the delay of 79 days not inordinate once the Christmas recess under Rule 3(e) was excluded. However, the applicant's sole explanation - that she was not served with notice of the electronic delivery of the ruling - was a bare, unevidenced claim that failed to disclose when she learned of the ruling. Applying the Salat principles, the County Executive of Kisumu requirement to declare and explain the whole period of delay, and the persuasive South African authority in National Union of Mineworkers, the judge held that without a plausible explanation even a slight delay warrants dismissal. The notice of motion was dismissed with costs to the respondents.

Key legal issues

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01

Whether the delay of 79 days (3 months and 6 days) was inordinate

Holding

The delay was not inordinate, given the Christmas recess under Rule 3(e) of the Court of Appeal Rules, 2022, which is excluded in computing time

Reasoning

The ruling was delivered on October 4, 2022 and the notice of appeal was due by October 18, 2022. The application was dated January 10, 2023. Because the Christmas recess is not reckoned in the computation of time under Rule 3(e), the court found the delay not inordinate. However, this finding alone could not save the application, since the explanation for the delay was unsatisfactory.

p. 4
02

Whether the applicant tendered sufficient reasons for the delay

Holding

The reasons advanced were unsatisfactory; a bare, unevidenced claim of non-service of notice of delivery of the ruling cannot support the exercise of discretion under Rule 4

Reasoning

The applicant's sole reason was non-service of notice of the electronic delivery of the ruling, but she did not disclose when she became aware of it. The court adopted the South African authority in National Union of Mineworkers, holding that candor and a plausible explanation are foundational to the judicious exercise of discretion, and that without one even a slight delay justifies dismissal.

p. 4
03

Correct invocation of jurisdiction in Court of Appeal proceedings

Holding

Applications in the Court of Appeal should be premised on the Court of Appeal Rules, 2022; an extension-of-time application is ordinarily brought under Rule 4

Reasoning

The application had been erroneously brought under Order 42 rule 6 and Order 41 rule 1 of the Civil Procedure Rules, sections 3 and 3A of the Civil Procedure Act, and article 146 of the Constitution. The judge reminded counsel that litigants must invoke the correct provisions, and that failure to do so is not cured by Article 159. Sitting as a single judge, the judge could consider only the Rule 4 prayer.

p. 1

Legal principles established

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  • Litigants must invoke the correct constitutional or statutory provisions for the jurisdiction they seek; failure to do so is not a procedural technicality curable under Article 159 of the Constitution.
  • In an application for extension of time, the whole period of delay must be declared and explained satisfactorily to the Court.
  • Without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial; even a slight delay, if unexplained, warrants dismissal of an extension application.

Court orders

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  1. 1.The notice of motion dated January 10, 2023 is dismissed
  2. 2.The respondents shall have the costs of the application
On appeal from
Environment and Land Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (application for extension of time, brought erroneously also under Order 42 rule 6 and Order 41 rule 1 of the Civil Procedure Rules, sections 3 and 3A of the Civil Procedure Act, and article 146 of the Constitution)

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, "Grace Wanjiku Kiarie & 3 others v Lands Registrar Nakuru & 4 others", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1195/eng@2023-10-06

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