Jonathan Kipkorir Kenduiywa v Charles Kipkoech Kigen [2017] KEELC 1170 (KLR)
The bottom line
#A Kenyan court refused to accept a late land appeal because the appellant never explained the four-month delay under oath, so the original judgment stands.
What this practically means
#Executive summary
#Key legal issues
#Whether the four-month delay in filing the appeal was excusable
The delay of about four months was inordinate and no acceptable explanation was provided on oath
The memorandum of appeal was filed about four months after the statutory thirty-day period, and the application for admission was filed a further eight months later. The supporting affidavit gave no explanation for the delay; the reasons attempted through submissions were unacceptable because submissions are not evidence.
Whether the respondent would suffer prejudice if the appeal were admitted out of time
Denying the respondent the fruits of his judgment constitutes prejudice the court cannot ignore, absent any explanation for the delay
The respondent deposed on oath that he had not been able to enjoy the fruits of the judgment. Since the applicant offered no explanation for the delay, the court found that keeping the respondent from the fruits of his litigation was prejudice that could not be ignored.
Guidelines for extension/admission of time applications
The court adopted the Court of Appeal guidelines in Mwangi v Kenya Airways (length of delay, reason for delay, chances of appeal succeeding, prejudice to respondent)
The court relied on the Court of Appeal's guidelines in Mwangi v Kenya Airways Ltd, quoting Leo Sila Mutiso v Rose Hellen Wangari Mwangi, that the decision to extend time is discretionary and considers the length of delay, reason for delay, chances of the appeal succeeding and prejudice to the respondent, the list not being exhaustive.
Legal principles established
#- Reasons for delay in filing an appeal must be put before the court in the form of evidence on oath; submissions do not constitute evidence
- An applicant for admission of an appeal out of time must satisfy the court that there was good and sufficient cause for not filing the appeal in time
Court orders
#- 1.Notice of Motion dated 20th January 2017 dismissed with costs
- On appeal from
- Senior Principal Magistrate's Court, Molo
- SPMCC No. 56 of 2014 (Molo)
- Jurisdiction invoked
- Sections 3A, 79G and 95 of the Civil Procedure Act; Section 16A of the Environment and Land Court Act; Order 42 Rule 6(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jonathan Kipkorir Kenduiywa v Charles Kipkoech Kigen [2017] KEELC 1170 (KLR)", Case Analysis (2017). SPMCC No. 56 of 2014 (Molo) appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1170/eng@2017-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.