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Court of AppealAllowedNot stated in the judgment

Rono (Sued as the Legal Representative of the Estate of Sofia Tamarta - Deceased) & another v Lagat; Kipkoech (Sued as the Legal Representative of the Estate of Helen Jeptum Rono) (Interested Party) (Civil Application E009 of 2024) [2024] KECA 627 (KLR)

Court of Appeal
27 May 2024
723 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed landowners to file their eviction appeal late, ruling a short, explained delay caused by their former lawyer shouldn't punish them.

What this practically means

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Executive summary

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The Environment and Land Court at Kapsabet had, on 30th November 2023, permanently enjoined the applicants and the interested party from dealing with parcel NANDI/CHEMUSWO/530 and ordered their eviction, with notices under Section 152(a) of the Land Act. The applicants sought leave under rule 4 of the Court of Appeal Rules to file a notice of appeal and record of appeal out of time, blaming their former advocate, who filed the notice late on 11th January 2024. The respondent opposed, arguing there was no plausible explanation for a three-month delay in bringing the application, no letter requesting proceedings, and that she would be deprived of the fruits of her judgment. Relying on the Leo Sila Mutiso criteria (length of and reasons for delay, arguability, and prejudice), Warsame JA held that the delay of approximately 6 days was not inordinate and was explained, distinguishing cases of mere client inaction: the applicants had diligently pursued their former advocate, followed up at the registry, and engaged new counsel. The single judge's wide discretion was exercised judiciously in the applicants' favour. The application was allowed and the applicants given 14 days from the date of the ruling to file and serve the notice of appeal and record of appeal. No costs order is stated. The decision below was not disturbed at this stage; this was an interlocutory extension-of-time ruling, not the hearing of the appeal itself.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the delay of about 6 days in filing the notice of appeal and record of appeal should be excused under rule 4
  2. 2.Whether the delay was explained and whether mistakes of counsel should be visited on innocent litigants
  3. 3.Whether the intended appeal is arguable and whether the respondent would be prejudiced

Key legal issues

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01

Extension of time under rule 4 where the delay is attributable to an advocate

Holding

A short, explained delay of approximately 6 days occasioned by an advocate's default was not inordinate, and the discretion was exercised in favour of the applicants where they diligently pursued their case and engaged new counsel.

Reasoning

The court applied the Leo Sila Mutiso factors. The notice of appeal was due on 14th December 2023 but was filed on 11th January 2024. The 1st applicant followed up at the registry, discovered the default, and appointed new advocates. This distinguished the case from mere inaction by a client; the delay was not inordinate and was explained.

p. 2

Legal principles established

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  • A single judge's discretion under rule 4 is wide but must be exercised judiciously, considering the length of and reasons for the delay, arguability of the appeal, and prejudice to the respondent.

Court orders

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  1. 1.The application dated 28th February 2024 is allowed
  2. 2.The notice of appeal and record of appeal be filed and served within 14 days from the date of delivery of the ruling

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority

Wrote the judgment

On appeal from
Environment and Land Court at Kapsabet
Not stated in the judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single judge's discretion to extend time)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the circumstance I am inclined to exercise my discretion in favour of the applicants, which I hereby do. Consequently, I allow the application and direct that the notice of appeal and record of appeal be filed and served within 14 days from the date of delivery of this ruling.
p. 2Final orders — extension of time granted
The delay is approximately 6 days. In my view, this delay is not inordinate and has been explained.
p. 2Delay of 6 days is not inordinate

Issues in the judgment

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minor

Parties are not named; the judgment refers only to 'the applicants', 'the respondent' and 'the interested party', so the case title cannot be stated.

minor

The judgment inconsistently describes the notice of appeal as filed 11th January 2024 (stated as a delay of about 29 days) yet later assesses the delay as approximately 6 days, without reconciling the two figures.

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, "Rono (Sued as the Legal Representative of the Estate of Sofia Tamarta - Deceased) & another v Lagat; Kipkoech (Sued as the Legal Representative of the Estate of Helen Jeptum Rono) (Interested Party) (Civil Application E009 of 2024) [2024] KECA 627 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/627/eng@2024-05-27

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