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Court of AppealDismissedNot stated in the judgment· [2024] KECA 1357 (KLR)

Machira v Kabuchwa & another (Civil Application E075 of 2024) [2024] KECA 1357 (KLR)

Court of Appeal of Kenya
3 October 2024
SKS. ole KANTAI
757 words in judgment
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The bottom line

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The Court of Appeal refused to forgive a missed appeal deadline because the applicant's lawyer ignored an email notice and failed to follow basic filing rules.

What this practically means

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Executive summary

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This was a single-judge application under rule 4 of the Court of Appeal Rules by James Muhindi Machira seeking leave to file and serve a notice of appeal out of time, and an order deeming the notice filed on 13th June 2024 and served on 18th June 2024 as duly filed and served. The intended appeal targeted the decision of the Environment and Land Court at Nyeri (Olola, J.) delivered on 9th May 2024, dismissing the applicant's case concerning fraud and title to Land Parcel No. Magutu/Gathehu/1153. The applicant said he learned of the judgment only on 10th June 2024, both he and his counsel having been absent at delivery. The 2nd respondent, Edward Wahome Kagoiya, countered with an email of 6th May 2024 showing the applicant's advocates were notified of the judgment date, and pointed to the applicant's failure to serve the notice of appeal and the letter bespeaking proceedings within the prescribed time or at all. Kantai JA applied the settled principles from Leo Sila Mutiso v. Rose Hellen Wangari Mwangi, found no reasonable explanation for counsel's absence despite proper notice, and noted the letter bespeaking proceedings was not copied to the other side in breach of the proviso to rule 84. The Motion was dismissed with costs to the 2nd respondent. The decision below was not disturbed; the applicant remains unable to prosecute an appeal.

Key legal issues

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01

Whether the delay in learning of the judgment and filing the notice of appeal was satisfactorily explained

Holding

The application was dismissed because the applicant's lawyer was notified by email of the judgment date but did not attend, and no reasonable explanation was given for that failure or for the late, un-served notice of appeal.

Reasoning

The court noted an email of 6th May 2024 informed parties that judgment would be delivered both virtually and in open court. The applicant did not say the email was not received by his lawyer, and gave no reason why counsel failed to attend delivery of judgment. Nor was there an explanation for the late filing of the notice of appeal or its delayed service, or for the letter bespeaking proceedings not being copied to the respondents. Discretion under rule 4 was therefore not deserved.

p. 2

Legal principles established

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  • An appellant can only benefit from the proviso to rule 84 of the Court of Appeal Rules where the letter bespeaking proceedings is copied or served on the other side.
  • Extension of time under rule 4 requires a reasonable explanation for the delay and for non-compliance with clear provisions of law before the discretion is exercised.

Court orders

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  1. 1.The Motion for extension of time to file and serve notice of appeal out of time was dismissed
  2. 2.Costs of the Motion awarded to the 2nd respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 84 (proviso)

Cases cited (1)

  • Leo Sila Mutiso v. Rose Hellen Wangari Mwangi
    [1999] 2 EA 231
On appeal from
Environment and Land Court at Nyeri
Not stated in the judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend 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, "Machira v Kabuchwa & another (Civil Application E075 of 2024) [2024] KECA 1357 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1357/eng@2024-10-03

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