Loise Chemutai Ngurule & another v Wilfred Leshwari Kimung’en & 2 others [2015] KEELC 447 (KLR)
The bottom line
#A Kenyan court confirmed you can ask either the High Court or the Court of Appeal for more time to file an appeal notice, and excused a lawyer's mistake.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the High Court and courts of equal status to extend time to lodge a Notice of Appeal
Section 7 of the Appellate Jurisdiction Act expressly confers jurisdiction on the High Court, which must now be read as including the Environment and Land Court and the Industrial Court, to extend time for giving notice of intention to appeal; Rule 4 of the Court of Appeal Rules does not make the Court of Appeal's power exclusive.
The court adopted a literal interpretation of Section 7, which explicitly empowers the High Court to extend time for giving notice of intention to appeal. It held that Rule 4 of the Court of Appeal Rules also grants the Court of Appeal power but does not make it exclusive. The court declined to follow the contrary decision in Simon Towett Martim and relied on the Court of Appeal's decision in Kenya Airports Authority & Another v Timothy Nduvi Mutungi, which confirmed the High Court's power.
Effect of Rule 12 of the Court of Appeal Rules on late documents
Rule 12 merely requires registry staff to receive late documents; it does not cure the defect of lateness or dispense with the need for extension of time.
The court reasoned that the purpose of Rule 12 is to remove discretion from registry staff to reject documents filed out of time; they must be received as filed, but the court may still reject them as out of time. Mere receipt does not amount to admission out of time. Therefore an applicant must still seek extension of time, otherwise the document stands to be rejected.
Whether the delay in filing the Notice of Appeal was excusable
The delay of 36 days after judgment (22 days after expiry of the 14-day period) was well explained and not inordinate; good reason was shown because the erstwhile counsel failed to file the Notice of Appeal despite instructions.
The applicants learned only on 27 February 2015, when visiting their former counsel's offices, that no Notice of Appeal had been filed; they promptly instructed new advocates who filed the application. The court found the mistake of counsel explanation sufficient and the delay not inordinate, warranting extension on the merits.
Competence of the stay prayer before an appeal is filed
The stay prayer in the application was for interim stay pending hearing of the application, not stay pending appeal, so the objection based on Halai & Another v Thornton & Turpin did not apply.
The court distinguished the objection that stay cannot be sought before filing an appeal by looking at what was actually sought: the prayer sought stay pending inter partes hearing of the application, not stay pending appeal. The objection premised on authority that stay pending appeal cannot precede an appeal was therefore misplaced.
Legal principles established
#- The power to extend time for filing a Notice of Appeal is vested in both the High Court (and courts of equal status) and the Court of Appeal; a party may approach either court.
- Rule 12 of the Court of Appeal Rules (receipt of late documents) does not oust the need to apply for extension of time.
Court orders
#- 1.Application allowed; time extended to the defendants to lodge their Notice of Appeal out of time
- 2.Notice of Appeal to be filed and served within the next 14 days
- 3.Applicants to shoulder the costs of the application
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act (CAP 9), construed with the Constitution of Kenya, 2010 to include courts of equal status to the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Shah v Kitangila Limited & 2 others (Environment and Land Case Civil Suit E030 of 2024) [2026] KEELC 2608 (KLR)[2026] KEELC 2608 (KLR)5 May 2026followed
- Njagi v Syokimau Farm Limited & 15 others (Environment and Land Case Civil Suit E020 of 2023) [2026] KEELC 2591 (KLR)[2026] KEELC 2591 (KLR)5 May 2026followed
Cite this brief
#Cite this brief
Caselaw, "Loise Chemutai Ngurule & another v Wilfred Leshwari Kimung’en & 2 others [2015] KEELC 447 (KLR)", Case Analysis (2015). Miscellaneous Application dated 3 March 2015 (arising from Nakuru ELC Case over parcel Nakuru/Mariashoni/980). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/447/eng@2015-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.