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Court of AppealAllowedCivil Application (Extension of Time) arising from intended appeal against ELC Petition No. 3 of 2020· [2024] KECA 1032 (KLR)

Karira Kimara & 2 others v The National Land Commission & 4 others

Court of Appeal of Kenya
28 May 2024
2,953 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 allowed residents to file their appeal five days late, confirming that short, explained delays will not block access to justice.

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 Nyeri (Jamila Mohammed, JA) on a notice of motion dated 17th November 2023 by Karira Kimara, Michael Njoroge and George Njigu, suing on behalf of Kandara Residence Association, seeking extension of time to file and serve a record of appeal against the judgment of the Environment and Land Court at Murang'a (L. Gicheru, J.) of 28th April 2022 in ELC Petition No. 3 of 2020. The record of appeal, dated 7th December 2022, was filed on 13th December 2022 - five days late under Rule 84 and this Court's order of 8th November 2022 - and the 1st respondent, Del Monte (K) Ltd, had applied to strike it out. The applicants attributed the default to their former advocates. Del Monte opposed, arguing inordinate and unexplained delay and continuing prejudice from persisting status quo orders; the National Land Commission was not opposed. The court applied Rule 4 and the settled factors in Leo Sila Mutiso v Hellen Wangari Mwangi, as elaborated in Fakir Mohammed and Muringa Company Ltd, holding there is no minimum or maximum period of delay and that a plausible, satisfactory explanation unlocks the discretion. Finding the five-day delay neither inordinate nor unexplained, the appeal arguable and no undue prejudice demonstrated, the court allowed the motion, granted leave to file the record and memorandum of appeal out of time, deemed the record properly on record and served within time, and ordered costs of the application to abide the outcome of the appeal. The decision below was not under review; this was an interlocutory extension-of-time application, and the case does not bind lower courts on anything beyond the ordinary Rule 4 principles it restates.

Key legal issues

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01

Whether the five-day delay in filing the record of appeal was inordinate and satisfactorily explained

Holding

The five-day delay was not inordinate and was satisfactorily explained by the applicants.

Reasoning

The record of appeal was due within 60 days under Rule 84, and the Court's order of 8th November 2022 required filing within 30 days. It was filed on 13th December 2022, five days late. The court accepted the applicants' explanation attributing the lapse to their former advocates and found the delay neither inordinate nor unexplained.

p. 5
02

Whether the applicants met the parameters for extension of time under Rule 4

Holding

The applicants demonstrated the existence of the parameters set out in Leo Sila Mutiso v Hellen Wangari Mwangi and the application was allowed.

Reasoning

Applying the locus classicus factors - length of delay, reason for delay, chances of the appeal succeeding and degree of prejudice to the respondent - the court found the delay short and explained, the appeal arguable, and balanced the applicants' right of appeal against any prejudice to respondents, concluding the discretion should be exercised in the applicants' favour.

p. 6

Legal principles established

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  • Rule 4 of the Court of Appeal Rules confers an unfettered discretion on the Court to extend time, exercised on factors including the length of and reason for delay, the arguability of the appeal and prejudice to the respondent.
  • There is no minimum or maximum period of delay prescribed by law; what matters is that the delay be satisfactorily, plausibly and reasonably explained.
  • It would be wrong to shut an applicant out of court and deny the right of appeal on an extension-of-time application where the intended appeal is arguable, the applicant's conduct was not inexcusable and the opponent suffers no prejudice.

Court orders

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  1. 1.Leave granted to the applicants to file and serve the record of appeal and memorandum of appeal out of time
  2. 2.The record of appeal dated 7th December 2022 and filed on 13th December 2022 deemed as properly on record and served within time
  3. 3.Costs of the application to abide by the outcome of the appeal
On appeal from
Environment and Land Court at Murang'a
ELC Petition No. 3 of 2020
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act, Rules 1(2), 4 and 49 of the Court of Appeal Rules, 2022, and Article 50 of the Constitution of Kenya, 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, "Karira Kimara & 2 others v The National Land Commission & 4 others", Case Analysis (2024). Civil Application (Extension of Time) arising from intended appeal against ELC Petition No. 3 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1032/eng@2024-05-28

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