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Court of AppealDismissedMotion dated 31st January, 2024 (Court of Appeal, Eldoret)· [2024] KECA 628 (KLR)

Joyce Sikhoya Barasa & 2 others v Philip Matanda Musundi & 2 others

Court of Appeal of Kenya
27 May 2024
1,002 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a lapsed succession appeal because the applicants gave no valid explanation for the delay.

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 Eldoret, delivered by M. Warsame, JA, on 27th May 2024, on a motion dated 31st January 2024 invoking Rule 4 of the Court of Appeal Rules, 2022 and Sections 3A and 3B of the Appellate Jurisdiction Act. The applicants sought leave to file and serve a fresh notice of appeal and record of appeal against the High Court judgment in Succession Cause No. 12 of 2017 delivered on 23rd July 2019. Their original notice of appeal, lodged on 23rd July 2019, had been deemed withdrawn by a ruling of 4th November 2022 for failure to institute the appeal; a review application had also been rejected, the court finding no record of appeal had in fact been filed. The applicants asserted that a record of appeal dated 3rd August 2020 had been filed in Eldoret on 25th August 2020 but had escaped the Judges' attention. The court applied the settled Rule 4 threshold - reasons for delay, whether the delay is inordinate, and arguability - and found that no explanation whatsoever had been given for the delay, whether in filing the record of appeal or in bringing the application so late. Applying Ratman v. Cumarasamy and City Chemist v. Oriental Bank, it held that discretion must be exercised judiciously, not out of pity, and that the overriding objective cannot cure an unexplained delay. The application was found incompetent and devoid of merit and was dismissed with costs. No decision below was disturbed; this was an interlocutory discretionary ruling.

Key legal issues

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01

Exercise of discretion under Rule 4 to extend time

Holding

The application was dismissed because the applicants gave no explanation for the delay in filing the record of appeal or for bringing the application long after the notice of appeal was deemed withdrawn.

Reasoning

The court reaffirmed the Rule 4 threshold: reasons for the delay, that the delay not be inordinate, and arguability of the intended appeal. Judgment was delivered on 23rd July 2019 and the record of appeal was due by 4th July 2019 (as stated); the court had already ruled on 4th November 2022 that no record of appeal was filed. Discretion must be exercised judiciously, not out of pity or a desire to give one final chance, and the pendency of a review application did not excuse the delay since filing the appeal did not depend on its outcome.

p. 2
02

Effect of failure to obey procedural rules

Holding

Court rules must prima facie be obeyed; extension of time requires material on which the court can exercise its discretion.

Reasoning

Relying on the Privy Council in Ratman v. Cumarasamy, the court held that a party in breach has no unqualified right to an extension of time, since the rules provide a timetable for the conduct of litigation. Material must be placed before the court justifying the exercise of its discretion, and none was offered here.

p. 2

Legal principles established

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  • An applicant under Rule 4 must give valid reasons for delay; without them the court has no jurisdiction to extend time, and the overriding objective cannot cure an unexplained delay.
  • The overriding objective does not permit extension of time where the delay is inordinate or unexplained.

Court orders

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  1. 1.The application dated 31st January, 2024 was dismissed with costs
On appeal from
High Court of Kenya
Succession Cause No. 12 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 and Sections 3A and 3B of the Appellate Jurisdiction Act

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, "Joyce Sikhoya Barasa & 2 others v Philip Matanda Musundi & 2 others", Case Analysis (2024). Motion dated 31st January, 2024 (Court of Appeal, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/628/eng@2024-05-27

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