Ndung’u & another v Gathii (Civil Application E090 of 2024) [2024] KECA 1454 (KLR)
The bottom line
#Kenya's Court of Appeal gave landowners nearly a year late to appeal because their lawyer failed to file, sparing them from eviction.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of about 11 months in filing the Notice of Appeal was adequately explained
Yes - the applicants' belief that their advocate had filed the appeal, discovered only when served with an eviction notice, was a reasonable explanation and the delay was not inordinate.
The applicants instructed a lawyer and paid fees, believing an appeal had been lodged. They learned otherwise only upon being served with an eviction notice, whereupon they engaged another lawyer. The court accepted this as a reasonable explanation attributable to the advocate's failure, and held the resulting delay of about 11 months was not inordinate in the circumstances.
Whether the prospects of success of the intended second appeal should bar the extension
No - although the judge had doubts about a second appeal raising only issues of law succeeding, prospects are a secondary consideration in an extension-of-time application.
The court examined the draft Memorandum of Appeal containing 14 grounds and, noting the intended appeal was a second appeal in which only issues of law may be raised, expressed doubt about its prospects. However, it held that this factor is secondary when dealing with an application for extension of time and did not, standing alone, justify refusal.
Legal principles established
#- In deciding an application for extension of time to appeal, the court considers: the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- The chances of the appeal succeeding are a secondary consideration in an application for extension of time.
Court orders
#- 1.The Motion is allowed; extension of time granted to file Notice of Appeal
- 2.Notice of Appeal to be lodged within fourteen (14) days
- 3.The appeal to be filed within fourteen (14) days thereafter
- 4.Costs of the Motion to be in the appeal
- On appeal from
- Environment and Land Court at Kerugoya
- Kerugoya ELC Appeal No. 11 of 2022
- Jurisdiction invoked
- Rules 4, 5(2)(b) and 47 of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndung’u & another v Gathii (Civil Application E090 of 2024) [2024] KECA 1454 (KLR)", Case Analysis (2024). Not stated in the judgment (Motion on notice under rules 4, 5(2)(b) and 47 of the Court of Appeal Rules, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1454/eng@2024-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.