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Court of AppealAllowedNot stated in the judgment (Motion under rule 4, Court of Appeal Rules, 2010)· [2024] KECA 983 (KLR)

Kiboi v Kenya Power & Lighting Co Limited & another (Civil Application E246 of 2024) [2024] KECA 983 (KLR)

Court of Appeal of Kenya
26 July 2024
737 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal granted a litigant more time to appeal after he missed a judgment because the court never told him it would be delivered.

What this practically means

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Executive summary

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This is a ruling by a single Judge of Appeal, S. Ole Kantai JA, delivered at Nairobi on 26th July 2024 on a Motion under rule 4 of the Court of Appeal Rules, 2010 seeking extension of time to file and serve a Memorandum of Appeal and Record of Appeal, and leave to appeal out of time, against a judgment of the High Court at Kajiado delivered on 24th April 2023. The applicant, John Senteu Kiboi, whose claim against the 1st respondent was one of trespass/way leave, said his appeal had been dismissed with costs of Kshs.120,000; he learned of the judgment only on 9th October 2023 because no notice of delivery had been given, applied for proceedings and filed a Notice of Appeal on 6th November 2023, and filed the motion on 17th May 2024, the day after the decree issued. The respondents were served with a hearing notice but filed neither a replying affidavit nor submissions. Applying the settled Fakir Mohamed principles - length and reason for delay, arguability, and prejudice - the court found the explanation reasonable, the delay not inordinate, the five grounds of appeal arguable, and no undue prejudice to the respondents. The motion was allowed, with a Notice of Appeal to be lodged within seven days and costs of the motion in the appeal. The decision is interlocutory and applies established principles rather than laying down new binding doctrine.

Key legal issues

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01

Reason for delay where judgment is delivered in the absence of unnotified parties

Holding

Delivery of judgment without notice to the parties, discovered under a month later, is a reasonable explanation and does not amount to inordinate delay.

Reasoning

The applicant learned of the judgment on 9th October 2023 after delivery on 24th April 2023 without notice. He applied for proceedings and filed a Notice of Appeal on 6th November 2023, less than a month after learning of the judgment, and the motion followed shortly after the decree. The court accepted this as reasonable and found no inordinate delay.

p. 2
02

Arguability of the intended appeal

Holding

The draft Memorandum of Appeal with five grounds was considered arguable.

Reasoning

The court examined the draft Memorandum of Appeal setting out five grounds and concluded that the grounds were arguable, satisfying the second limb of the Fakir Mohamed test. This, combined with absence of prejudice to respondents who did not respond despite service, justified granting the extension.

p. 2

Legal principles established

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  • A single Judge of the Court of Appeal exercises the Rule 4 discretion guided by the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent - this application applies that settled test rather than creating new precedent.

Court orders

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  1. 1.The Motion is allowed
  2. 2.A Notice of Appeal to be lodged within SEVEN (7) days of the date of the ruling
  3. 3.Costs of the Motion to be in the appeal

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4

Cases cited (1)

  • Fakir Mohamed vs. Joseph Mugambi & 2 Others
    [2005] eKLR
On appeal from
High Court of Kenya at Kajiado
Jurisdiction invoked
Rule 4, Court of Appeal Rules, 2010 (extension of time)

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, "Kiboi v Kenya Power & Lighting Co Limited & another (Civil Application E246 of 2024) [2024] KECA 983 (KLR)", Case Analysis (2024). Not stated in the judgment (Motion under rule 4, Court of Appeal Rules, 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/983/eng@2024-07-26

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