Kwinga (Suing as the Administrator Ad Litem of the Estate of Kwinga Maliango – Deceased) v Kavisi (Sued as the Administrator of the Estate of Kavisi Kinovi - Deceased) & another
The bottom line
#Kenya's Environment and Land Court allowed a late appeal because the litigant's death and the time needed to obtain legal authority explained the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant met the threshold for leave to file an appeal out of time
Yes. The delay of slightly less than three months was explained by the death of the original litigant and the pursuit of a grant ad litem; the appeal was arguable and no prejudice incapable of compensation by costs was shown.
The court applied the four factors from Leo Sila Mutiso v Rose Hellen Wangari Mwangi as restated in Thuita Mwangi v Kenya Airways Ltd: length of delay, reason for delay, arguability of the appeal and prejudice to the respondent. The delay ran from July 20, 2022 to October 13, 2022; the grant ad litem expressed the intention to appeal; the memorandum was ready; and any prejudice could be cured by costs.
Legal principles established
#- The power to extend time for filing a Notice of Appeal is vested in both the High Court (including courts of equal status) and the Court of Appeal.
- In exercising discretion to grant extension of time, 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.
Court orders
#- 1.Leave granted to the Applicant to file a Notice of Appeal out of time
- 2.The Notice of Appeal to be filed and served within the next 14 days from the date of the ruling
- On appeal from
- Environment and Land Court at Makueni
- Makueni ELC Misc App No E005 of 2021
- Jurisdiction invoked
- Sections 13, 16A and 30 of the Environment and Land Court Act; Section 7 of the Appellate Jurisdiction Act; Order 50 Rule 5 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kwinga (Suing as the Administrator Ad Litem of the Estate of Kwinga Maliango – Deceased) v Kavisi (Sued as the Administrator of the Estate of Kavisi Kinovi - Deceased) & another", Case Analysis (2023). Miscellaneous Application E008 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18171/eng@2023-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.