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Court of AppealPartially AllowedCivil Application (Nakuru) arising from Civil Appeal 117 of 2017· [2024] KECA 1337 (KLR)

Priscilla Jeruto Kisoso v Tungo Totona & 3 others

Court of Appeal of Kenya
27 September 2024
1,207 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a litigant more time to appeal a 13-day delay caused by the court's own failure to issue notice, though she pays the respondents' costs.

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 Nakuru by Warsame, JA, on an application under Rule 4 of the Court of Appeal Rules for extension of time to file an appeal out of time. The underlying dispute concerns Land Parcel No. Lembus/chemogoch/10, in which the applicant sought eviction before the Environment and Land Court at Nakuru, and the respondents counterclaimed for declaration of ownership. Sila, J. initially struck out the defendants for want of service, then on review allowed service on harsh conditions including surrender of the property and payment of Kshs.1,000,000 as security. The respondents appealed in Civil Appeal 117 of 2017, which succeeded and set aside that ruling, reinstated the counterclaim and ordered a hearing de novo. Unknown to the parties, the trial court proceeded to judgment by Njoroge, J. on 19th January 2023, partially allowing the applicant's claim; on review, that judgment was set aside on 24th February 2024 for hearing de novo. The applicant, aggrieved by the review ruling and unaware of its delivery, applied on 22nd August 2024 to file her appeal out of time, blaming the court's failure to issue a notice of delivery. Applying the principles in Fakir Mohamed v Joseph Mugambi, the court found the actual delay of about 13 days not inordinate and sufficiently explained, and found the intended appeal arguable on whether the Court of Appeal's orders remained alive at implementation. The motion was allowed, with time extended to file and serve the notice and record of appeal within 14 days, but costs were awarded to the respondents.

Key legal issues

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01

Whether the delay in filing the appeal was inordinate and sufficiently explained

Holding

The delay of about 13 days from the applicant's awareness of the ruling was not inordinate and was sufficiently explained

Reasoning

The applicant became aware of the reviewed judgment only on 9th August 2024 upon service by the respondents' advocates, and the respondents themselves only learned of it on 9th July 2024. Though the court noted a lack of expedition by the applicant between 9th and 22nd August 2024, the actual delay of about 13 days was short and explained by the failure to issue a notice of delivery of the ruling after the trial judge's transfer.

p. 3
02

Whether the intended appeal is arguable

Holding

The intended appeal raises an arguable question as to whether the Court of Appeal's orders in Civil Appeal 117 of 2017 remained alive when the ELC judge implemented them

Reasoning

The court examined the draft memorandum of appeal and found that whether the orders of the Court of Appeal were alive or dead at the time of implementation by the ELC judge is a question worthy of consideration on appeal. The respondents had neither confirmed nor denied their own compliance with the timelines given in Civil Appeal 117 of 2017.

p. 3

Legal principles established

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  • The discretion to extend time under rule 4 is unfettered but must be judicially exercised, weighing period and reason for delay, chances of success, prejudice and other relevant factors

Court orders

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  1. 1.The motion dated 22nd August 2024 is allowed with costs to the respondents
  2. 2.Time is extended to file and serve the notice of appeal and record of appeal
  3. 3.The applicant is directed to file the notice of appeal within 14 days of the ruling
On appeal from
Environment and Land Court, Nakuru
Nakuru ELC Case No. 267 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time discretion)

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, "Priscilla Jeruto Kisoso v Tungo Totona & 3 others", Case Analysis (2024). Civil Application (Nakuru) arising from Civil Appeal 117 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1337/eng@2024-09-27

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