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ELCAllowedEnvironment & Land Case 282 of 2016· [2023] KEELC 18465 (KLR)

Kaburungo (Suing as the Administrator of the Estate of Dedan Kageni Kaburungo) v Karatu & 2 others

Environment and Land Court
16 March 2023
1,529 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a late appeal because a lawyer's failure to file it was a reasonable excuse, though the applicant still paid costs.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (LC Komingoi, J) on a Notice of Motion dated May 11, 2022 by the plaintiff, Jane Njeri Kaburungo, seeking extension of time to file and serve a notice of appeal out of time against a judgment delivered on November 25, 2021. The application, brought under Article 159(2)(d) of the Constitution, Sections 1A, 3A and 95 of the Civil Procedure Act and Order 9 Rules 9 and 10 and Order 50 Rules 4 and 6 of the Civil Procedure Rules, was opposed by the 2nd defendant, Gulf Energy Limited, through a replying affidavit of its CEO Paul Limoh. The plaintiff blamed the delay of almost five months on her former advocate's failure to lodge the appeal despite instructions, evidenced by an email of December 1, 2021. The respondent argued the delay was inordinate and unexplained, the application was an afterthought to frustrate payment of costs, and litigation must come to an end. The court applied the settled principles in Leo Sila Matiso vs Rose Hellen Wangari Mwangi - length of delay, reason for delay, chances of the appeal succeeding and prejudice to the respondent - and found the applicant had given a reasonable explanation and that the respondent, being in possession of the suit property, would suffer no prejudice. The court allowed the application, extending time to file the notice of appeal within 21 days, but ordered that the 2nd defendant have the costs of the application.

Key legal issues

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01

Whether the applicant gave a reasonable explanation for the delay in filing the notice of appeal

Holding

The court found the applicant's explanation - that she instructed her former advocate to appeal but discovered in April 2022 that no appeal had been lodged - reasonable.

Reasoning

The applicant annexed an email dated December 1, 2021 requesting the former advocate to initiate and complete the appeal, and inquired about the status in April 2022. The court found this demonstrated she had instructed the advocate and gave a reasonable explanation for the delay of almost five months.

02

Whether the respondent would suffer prejudice if extension is granted

Holding

The court accepted that the 2nd Defendant is in possession and/or occupation of the suit property and would suffer no prejudice.

Reasoning

Counsel for the applicant submitted, without contradiction, that the 2nd Defendant/Respondent is in current possession and/or occupation of the suit property. The court agreed that the respondent would suffer no prejudice if the applicant is allowed to go on appeal.

Legal principles established

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  • The decision whether or not to extend time for appealing is discretionary, guided by the length of delay, reason for delay, chances of the appeal succeeding and prejudice to the respondent.

Court orders

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  1. 1.That the time for filing notice of appeal is hereby extended on condition that the same be filed within twenty one (21) days from the date of this ruling
  2. 2.That the 2nd Defendant/Respondent shall have costs of this application

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSections 1A, 3A and 95
  • Civil Procedure RulesOrder 9 Rules 9 and 10; Order 50 Rules 4 and 6
  • Court of Appeal RulesRules 75 and 82

Cases cited (11)

  • Kiu & Another vs Khaemba & 3 Others
    KECA 318 KLR

    Extension of time principles; constitutional right of access to appeal

  • CFC Stanbic Limited vs John Maina Githaiga & Another
    [2013] eKLR

    Delay attributable to former advocate's mistake as excusable

  • Vishra Stone Suppliers Company Limited vs RSR Stone [2006] Limited
    [2020] eKLR

    Delay of 1 year, 2 months and 7 days found excusable

  • Athuman Nusura Juma vs Afwa Mohammed Ramadhan
    [2016] eKLR

    Intended appeal being arguable

  • Kenya Power & Lighting Company vs Benzene Holdings Limited t/a Wyco Paints
    [2016] eKLR

    Article 159(2)(d) and technicalities not inhibiting the right of appeal

  • Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others
    [2016] eKLR

    Principles guiding extension of time discretion

  • Rajesh Rughani vs Fifty Investments Limited & Another
    [2016] eKLR

    Applicant must demonstrate due diligence; blaming advocates not persuasive

  • Nginyanga Kavole vs Mailu Gideon
    [2019] eKLR

    Application as afterthought to delay conclusion of matter

  • Mae Properties Limited vs Joseph Kibe & Another
    [2017] eKLR

    Delay and frustration of payment of costs

  • Stanley Kaiyongi Mwenda vs Cyprian Kubai

    Applicant must explain to the court's satisfaction why discretion should be exercised in his favour

  • Leo Sila Matiso vs Rose Hellen Wangari Mwangi
    Civil Application No NAI 255 of 1997 (unreported)

    Factors: length of delay, reason, chances of appeal succeeding, prejudice to respondent

Jurisdiction invoked
Article 159(2)(d) of the Constitution; Sections 1A, 3A and 95 of the Civil Procedure Act; Order 9 Rules 9 and 10 and Order 50 Rules 4 and 6 of the Civil Procedure Rules

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, "Kaburungo (Suing as the Administrator of the Estate of Dedan Kageni Kaburungo) v Karatu & 2 others", Case Analysis (2023). Environment & Land Case 282 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18465/eng@2023-03-16

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