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Court of AppealDismissedCivil Application (Notice of Motion dated 18th July 2023) in Nakuru· [2024] KECA 808 (KLR)

James Mutuku Mativo & 1 other v Eddy Kuria & 8 others

Court of Appeal of Kenya
12 July 2024
WKW. Korir
1,277 words in judgment
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The bottom line

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Kenya's Court of Appeal refused a five-year-late attempt to join an appeal, confirming that extension of time must be earned with a solid explanation.

What this practically means

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Executive summary

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This was a single-judge application before the Court of Appeal at Nakuru under rule 4 of the Court of Appeal Rules, brought by James Mutuku Mativo seeking leave to file a notice of appeal, and the record of appeal, out of time against a judgment of Wendoh J. delivered on 20th December 2018 in Nakuru HCC No. 110 of 1998. The applicant, claiming to hold a legitimate title to part of the suit property and never to have been joined in the trial proceedings, averred that he only discovered the judgment in 2023 when he saw the matter on the cause list, and that the intended appeal was arguable. Counsel for the applicant relied on the Supreme Court's Salat decision to urge that there was no intentional default and that inconvenience could be compensated by costs. The respondents opposed, contending the delay of about six years was inordinate and the explanation inexcusable, and invoked authority on the need to abide by procedural timelines. Korir JA restated the Salat principles governing extension of time, emphasising that extension is an equitable remedy for a deserving party and that the applicant bears the burden of explaining delay. The court found the delay of about five years inordinate and the explanation unsatisfactory. Decisively, the appeal in which the applicant sought to participate as an interested party had already been struck out on 30th June 2023 in Kuria & 19 others v. Nyota, so there was no existing appeal for him to join. The application was dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether the applicant's explanation for a five-year delay in seeking leave to appeal out of time was sufficient

Holding

The delay was inordinate and the explanation - that the applicant only learnt of the 2018 judgment in 2023 from the cause list - was unsatisfactory, so extension of time was refused

Reasoning

The court applied the Salat principles, noting extension of time is an equitable remedy for deserving parties and that the applicant bore the burden of explaining the delay. The judgment was delivered on 20th December 2018 and the application dated 18th July 2023, a delay of about five years. Additionally, the appeal the applicant sought to join as interested party had already been struck out on 30th June 2023 in Kuria & 19 others v. Nyota, removing the vehicle for his participation.

p. 4

Legal principles established

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  • The discretion to extend time under rule 4 of the Court of Appeal Rules must be exercised judiciously and upon reason, not capriciously or whimsically, applying the Salat principles
  • The Salat extension-of-time principles are neither exhaustive nor must all be considered in every application; a court may select the factors that determine the application before it

Court orders

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  1. 1.Notice of motion dated 18th July 2023 dismissed
  2. 2.Each party to bear their own costs of the application
On appeal from
High Court
Nakuru HCC No. 110 of 1998
Jurisdiction invoked
Articles 159 and 259(2) of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act and rules 1(2), 4, 43 and 77 of the Court of Appeal Rules

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, "James Mutuku Mativo & 1 other v Eddy Kuria & 8 others", Case Analysis (2024). Civil Application (Notice of Motion dated 18th July 2023) in Nakuru. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/808/eng@2024-07-12

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