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Court of AppealAllowedCivil Application (Motion) under sections 3A and 3B of the Appellate Jurisdiction Act and rule 4 of the Court of Appeal Rules, 2010· [2024] KECA 681 (KLR)

Kimani v Gitau & another (Civil Application E022 of 2024) [2024] KECA 681 (KLR)

Court of Appeal of Kenya
14 June 2024
923 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi (Kantai, JA) delivered on 14th June 2024 on an application under sections 3A and 3B of the Appellate Jurisdiction Act and rule 4 of the Court of Appeal Rules, 2010. The applicant, Kamau Njoroge Kimani, sought leave to file a Notice of Appeal out of time against the whole judgment and orders of the Environment and Land Court at Thika (Kemei, J.) delivered on 18th October 2023 in ELC No. 6 of 2020 (OS), in which the plaintiff was held entitled to one acre to be excised from L.R No. Kiambu/Munyu/1646 by adverse possession. The applicant explained that his lawyer could not locate him after judgment because he is of advanced age, lives in a rural setting without telephone facilities, and that a copy of the judgment was only received on 10th January 2024 after numerous follow-ups. Applying the principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi on the length of delay, reasons for delay, chances of the appeal succeeding and prejudice to respondents, the court found the delay not unreasonable and the explanation reasonable. The respondents were duly served but filed no replying affidavit or submissions. The court held they would not be prejudiced and allowed the motion, directing that the Notice of Appeal dated 15th January 2024 be deemed duly filed upon payment of requisite fees and that a Notice of Appeal be lodged within ten days. Costs of the motion were made costs in the appeal.

Key legal issues

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01

Extension of time to appeal under rule 4 of the Court of Appeal Rules

Holding

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.

Reasoning

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.

p. 2
02

Access to the court's right to be heard on appeal

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.The Notice of Appeal dated 15th January 2024 to be deemed as duly filed upon payment of requisite fees
  3. 3.The applicant to lodge a Notice of Appeal within ten (10) days of the date of the ruling
  4. 4.Costs of the motion to be in the appeal

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3A and 3B
  • Court of Appeal Rules, 2010rule 4
  • Court of Appeal Rules, 2022

Cases cited (1)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    [1999] 2 EA 231
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

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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, "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.