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Court of AppealPartially AllowedCivil Application E084 of 2024

Kibiti v Kithira

Court of Appeal
5 December 2024
1,131 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal gave a litigant 60 days late a second chance to appeal, but made him pay the costs for the delay.

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 (Lesiit, JA) on a notice of motion dated 27th August 2024 brought under rule 4 of the Court of Appeal Rules, 2022, seeking extension of time to lodge a notice of appeal and memorandum of appeal out of time against the judgment of the Environment and Land Court at Meru (Nzili, J.) delivered on 15th May 2024 in E.L.C. (O.S.) E003 of 2023. The applicant should have filed his notice of appeal by 28th May 2024; the application was therefore lodged after a delay of just over 60 days. Applying the Salat principles from the Supreme Court, the court found the delay reasonably explained: the applicant instructed his advocate, paid part of the fees on 22nd May 2024 due to financial constraints, the previous counsel in fact prepared a notice of appeal dated 27th May 2024, and upon discovering the appeal had not been filed the applicant promptly instructed new counsel who filed the application. The court rejected the respondent's technical objection that the application was filed during court vacation without leave, holding that leave is only needed for certification of urgency for hearing during vacation, not for filing. On prejudice, the court balanced the applicant's loss of his right of appeal against the respondent's mere waiting time and found the balance favoured the applicant. The application was allowed with timelines for filing and serving the notice of appeal and record of appeal, but the applicant was ordered to meet the costs of the application. The decision below was not disturbed; this ruling concerns only appellate filing timelines.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has laid a basis for extension of time to lodge the notice of appeal and memorandum of appeal out of time
  2. 2.Whether there is a reasonable explanation for the delay of about 60 days
  3. 3.Whether the respondent will suffer prejudice if the extension is granted
  4. 4.Whether the application filed during court vacation without leave was improper

Key legal issues

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01

Whether the ~60-day delay in filing the notice of appeal was reasonably explained

Holding

The delay was reasonably explained by financial constraints, part payment to counsel, counsel's preparation of a notice of appeal, and the applicant's diligent follow-up before instructing new counsel

Reasoning

The court found the part-payment receipt sufficient proof of diligence, noted the previous counsel had prepared a notice of appeal dated 27th May 2024, and accepted that the applicant promptly instructed new counsel upon discovering the appeal had not been filed. The explanation was held to be reasonable.

02

Whether the respondent would suffer prejudice if extension were granted

Holding

No cognizable prejudice; the respondent would only face delay in waiting for the appeal, whereas the applicant would lose his right of appeal

Reasoning

The court balanced the parties' interests: the applicant stood to lose his undisputable right of appeal, while the respondent would only endure waiting for the appeal's determination. The applicant would lose more if the application were denied, so the balance favoured extension.

03

Whether filing during court vacation without leave was fatal

Holding

It was not; leave during vacation is only required for certification of urgency for hearing during vacation, not for filing

Reasoning

The court held the respondent's technical objection misplaced because the applicant had not sought to be heard during the vacation. Filing itself requires no leave; only urgent hearing during vacation does.

p. 2

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the discretion of the court, and the applicant bears the burden of laying a basis for it
  • Filing an application during court vacation requires no leave; leave is only needed to have the application certified urgent for hearing during vacation

Court orders

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  1. 1.The application dated 27th August, 2024 be and is hereby allowed
  2. 2.The applicant should file its notice of appeal within 21 days from the date hereof and be served within 14 days from the date of filing
  3. 3.The applicant is granted leave to file the record of appeal within 14 days of the date of filing the notice of appeal and to serve the same within 7 days from the date of filing of the record of appeal
  4. 4.The costs of the application be met by the applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Environment and Land Court of Kenya at Meru
E.L.C. (O.S.) E003 of 2023
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022

Relief refused

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Costs of the application against the respondent

The court ordered the applicant himself to meet the costs of the application despite allowing it

p. 3

Costs

The costs of the application be met by the applicant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
p. 1Principles governing extension of time
I am satisfied that the explanation given by the applicant is reasonable explanation.
Reasonable explanation for delay
Having balanced the two interests, I find that the applicant will stand to lose more if the application is denied.
Balance of prejudice
The application dated 27th August, 2024 be and is hereby allowed;
p. 3Final orders - disposition

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, "Kibiti v Kithira", Case Analysis (2024). Civil Application E084 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1871/eng@2024-12-05

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