Kimani v Thuku & 2 others (Civil Application E028 of 2024) [2024] KECA 682 (KLR)
The bottom line
#The Court of Appeal gave a landowner a second chance to appeal after her lawyers missed the deadline, blaming their neglect rather than her.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the Notice of Appeal was inordinate and satisfactorily explained
The delay from judgment on 24th October 2023 to 17th November 2023, when new efforts were made, was short and the explanation (failure of prior advocates to act on instructions) was accepted.
The court measured the delay from the date of the ELC judgment to the date the applicant's new advocates moved to rescue the position, finding only about three weeks. It accepted that the applicant had instructed her then advocates to appeal, that they failed to do so and failed to inform her, and that she only learned of the omission when a respondent filed his own Notice of Appeal. Replacement advocates needed court orders to come on record. This was not inordinate delay.
Whether the intended appeal was arguable and whether the respondents would suffer prejudice
The draft memorandum of appeal disclosed reasonable grounds of argument and the court could see no prejudice to the respondents.
Applying the third and fourth factors from Leo Sila Mutiso, the court examined the attached draft memorandum of appeal and found reasonable grounds to be argued, satisfying the arguability threshold, which is low at this stage. On prejudice, it noted that the 2nd respondent had already filed a Notice of Appeal of his own, so allowing the applicant to appeal could not materially disadvantage the respondents. Both factors favoured granting the extension.
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.Time extended for filing of appeal
- 2.Applicant to lodge a Notice of Appeal within ten (10) days of 14th June, 2024
- 3.Costs of the motion to be in the appeal
- On appeal from
- Environment and Land Court at Thika
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 4 and 47 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani v Thuku & 2 others (Civil Application E028 of 2024) [2024] KECA 682 (KLR)", Case Analysis (2024). Motion dated 26th January, 2024 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/682/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.