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Court of AppealDismissedCourt of Appeal Rules 2022 Notice of Motion dated January 10, 2024· [2024] KECA 607 (KLR)

Bartilol & 3 others v Bartilol & another (Civil Application 001 of 2024) [2024] KECA 607 (KLR)

Court of Appeal
24 May 2024
LAL. Achode
2,019 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 refused to extend time to appeal because the family delayed over three months without a good explanation, and got penalised with costs.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Nairobi) delivered on May 24, 2024 by Achode JA sitting as a single judge, on a Notice of Motion dated January 10, 2024 brought under rules 4, 5(2)(b), 41, 43, 47 and 49 of the Court of Appeal Rules 2022. The applicants, administrators of the estate of the late John Kiptum Bartilol, sought extension of time to appeal against the judgment of Nyakundi J in Succession Cause No. 17 of 2001 delivered September 28, 2023, and, in the alternative, stay of execution of that judgment and the ruling of December 14, 2023 dismissing their application for review. The judge observed that the application was an omnibus one: extension of time under rule 4 is for a single judge, whereas stay under rule 5(2)(b) must be placed before a multiple bench under rule 55(2), so only the rule 4 limb was determined. The applicants attributed the failure to serve their Notice of Appeal (filed October 4, 2023) to counsel's inadvertence and ongoing negotiations with the first family. Applying the Salat and Chemaringo principles, the court held that extension of time is an equitable remedy for a deserving party, that a plausible and satisfactory explanation is the key to discretionary favour, and that a delay of more than three months was not excusable, the applicants having gone to sleep on the appeal. The application was dismissed in its entirety with costs to the respondent.

Key legal issues

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01

Whether the delay of over three months in serving the Notice of Appeal was excusable so as to warrant extension of time under rule 4

Holding

The delay was not excusable. The applicants filed a Notice of Appeal on October 4, 2023 but failed to serve it under rule 77(1), attributing the failure to counsel's inadvertence and ongoing negotiations. The court found they went to sleep on the appeal process.

Reasoning

The court applied the settled principles in Nicholas Kiptoo Korir Arap Salat v IEBC and Paul Wanjohi Methane, holding that rule 4 discretion is unfettered but must be exercised judicially considering the period of delay, reasons for delay, prejudice and public interest. A plausible and satisfactory explanation is the key that unlocks discretionary favour. Here the explanation of counsel's inadvertence and negotiations was insufficient; the applicants were aware of their intention to appeal but let the matter lie for over three months, so extension was refused.

p. 4
02

The manner in which an omnibus application combining rule 4 and rule 5(2)(b) prayers should be handled

Holding

The rule 4 limb is for a single judge; the rule 5(2)(b) stay limb must go before a multiple bench under rule 55(2). The judge sifted the application and dealt only with the rule 4 part.

Reasoning

The judge noted that the application was an omnibus one drafted in a manner that does not align with the deployment of the Court of Appeal's jurisdiction. Extension of time is for a single judge, whereas stay of execution under rule 5(2)(b) requires a multiple bench. The judge exercised circumspection and determined only the rule 4 limb, implicitly leaving the stay prayers unaddressed.

p. 2

Legal principles established

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  • Extension of time is not an automatic right but an equitable remedy available to a deserving party at the court's discretion, and sufficient reason must first be established before other considerations arise
  • An application under rule 5(2)(b) for stay of execution must be placed before a multiple bench under rule 55(2), while an application for extension of time under rule 4 is for determination by a single judge; an omnibus application combining both does not align with how the Court of Appeal's jurisdiction is deployed

Court orders

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  1. 1.Dismissal of the application in its entirety
  2. 2.Costs awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rules 2022rule 4
  • Court of Appeal Rules 2022rule 5(2)(b)
  • Court of Appeal Rules 2022rule 41
  • Court of Appeal Rules 2022rule 43
  • Court of Appeal Rules 2022rule 47
  • Court of Appeal Rules 2022rule 49
  • Court of Appeal Rules 2022rule 55(2)
  • Court of Appeal Rules 2022rule 75(2)
  • Court of Appeal Rules 2022rule 77(1)

Cases cited (8)

  • Bank of Africa Kenya Limited v Put Sarajevo General Engineering Co.Ltd & 2 others
    [2018] eKLR
  • Ngei v Kibe & another
    (Civil Appeal E359 of 2021)
  • Bookpoint Limited v Guardian Bank Limited & another
    [2021] eKLR
  • Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited & 2 others
    [2020] eKLR
  • Paul Wanjohi Methane v Duncan Gichane Mathenge
    [2013] eKLR
  • Nicholas Kiptoo Korir Arap Salat v IEBC
    [2014] eKLR
  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR
  • Abdul Azizi Ngoma v Mungai Mathayo
    [1976] Kenya LR 61, 62
On appeal from
High Court
Succession Cause No. 17 of 2001
Jurisdiction invoked
Rules 4, 5(2)(b), 41, 43, 47 and 49 of the Court of Appeal Rules 2022

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bartilol & 3 others v Bartilol & another (Civil Application 001 of 2024) [2024] KECA 607 (KLR)", Case Analysis (2024). Court of Appeal Rules 2022 Notice of Motion dated January 10, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/607/eng@2024-05-24

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