Kimani v Gitau & another (Civil Application E022 of 2024) [2024] KECA 681 (KLR)
The bottom line
#The Court of Appeal allowed an elderly landowner to appeal late after explaining that his lawyer could not reach him in a rural area without a phone.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to appeal under rule 4 of the Court of Appeal Rules
The court applied the Leo Sila Mutiso principles and, finding the explanation for the delay reasonable, no prejudice to the respondents, and a prima facie arguable intended appeal, allowed the extension.
The applicant's lawyer could not locate him after judgment because he is of advanced age, lives in a rural setting and has no telephone, so instructions could not be obtained before time lapsed. Obtaining a copy of the judgment took from 30th October 2023 to 10th January 2024. The court found the delay not unreasonable, the explanation reasonable, and the respondents, who were duly served but filed nothing, unlikely to suffer prejudice.
Access to the court's right to be heard on appeal
The court held that a litigant whose delay is satisfactorily explained should have his day in the intended appeal notwithstanding that he lost at trial.
The dispute below concerned a successful adverse possession claim over one acre of the applicant's land. Given the reasonable explanation for the delay and absence of prejudice to the respondents, the court considered it fair to allow the applicant to challenge the judgment on appeal.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary, and the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
Court orders
#- 1.Leave granted to the applicant to file a Notice of Appeal out of time against the whole judgment and orders of the ELC at Thika in ELC No. 6 of 2020 (OS)
- 2.The Notice of Appeal dated 15th January 2024 to be deemed as duly filed upon payment of requisite fees
- 3.The applicant to lodge a Notice of Appeal within ten (10) days of the date of the ruling
- 4.Costs of the motion to be in the appeal
- On appeal from
- Environment and Land Court at Thika
- ELC No. 6 of 2020 (OS)
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rule 4 of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani v Gitau & another (Civil Application E022 of 2024) [2024] KECA 681 (KLR)", Case Analysis (2024). Civil Application (Motion) under sections 3A and 3B of the Appellate Jurisdiction Act and rule 4 of the Court of Appeal Rules, 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/681/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.