[2020] KECA 253 (KLR)
The court found that the applicant had provided a satisfactory and reasonable explanation for the delay in filing the notice of appeal, namely, lack of notice of the ruling's delivery and inaccessibility of the court registry due to COVID-19 closures. The applicant acted promptly upon learning of the ruling. The...
Source-derived case information.
- Citation
- [2020] KECA 253 (KLR)
- Parties
- Applicant: Kenneth Kipkurui Mibei (Suing as the administrator on behalf of the estate of Joseph Kimibei Rotich); Respondent: Elizabeth Kilele; Respondent: Fredrick Kiptonui Kilele; Respondent: Joseph Kipsigei Bii, Faith Naitore Kirimi & Phineas Mwongera Kirimi (Sued as the administrators on behalf of the estate of the late Daniel Kirimi M’Muna alias Kirimi M’Muna); Respondent: The Chief Land Registrar
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application E242 of 2020
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application allowed
- Judges
- S ole Kantai
- Legal Topics
- Extension of Time, Limitation Periods, Preliminary Objection, Appeals Process, Registry Access, Covid19 Court Closures
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenneth Kipkurui Mibei (Suing as the administrator on behalf of the estate of Joseph Kimibei Rotich)
Applicant
Elizabeth Kilele
Respondent
Fredrick Kiptonui Kilele
Respondent
Joseph Kipsigei Bii, Faith Naitore Kirimi & Phineas Mwongera Kirimi (Sued as the administrators on behalf of the estate of the late Daniel Kirimi M’Muna alias Kirimi M’Muna)
Respondent
The Chief Land Registrar
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the notice of appeal.
- 2 Whether the court should exercise its discretion to extend time for filing and serving the notice and record of appeal.
- 3 Whether the respondents would suffer prejudice if the extension is granted.
Ratio Decidendi
The court found that the applicant had provided a satisfactory and reasonable explanation for the delay in filing the notice of appeal, namely, lack of notice of the ruling's delivery and inaccessibility of the court registry due to COVID-19 closures. The applicant acted promptly upon learning of the ruling. The court was satisfied that the delay was not inordinate or deliberate, and that the respondents would not suffer prejudice if the extension was granted. Accordingly, the court exercised its discretion to allow the application for extension of time.
Court Disposition
application allowed
Orders
- The applicant is granted leave to lodge a notice of appeal within 14 days of the ruling date.
- The applicant shall serve the notice of appeal on the respondents in accordance with the rules.
Full Case Text
Judgment text and source record
35 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CROAM: KANTAI, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. E242 OF 2020
BETWEEN
KENNETH KIPKURUI MIBEI (Suing as the administrator on behalf
of the estate of theJOSEPH KIMIBEI ROTICH)....APPELLANT/APPLICANT
AND
ELIZABETH KILELE.............................................................1STRESPONDENT
FREDRICK KIPTONUI KILELE.........................................2NDRESPONDENT
JOSEPH KIPSIGEI BII, FAITH NAITORE KIRIMI
& PHINEAS MWONGERA KIRIMI (Sued as the administrators
on behalf of the estate of the lateDANIEL KIRIMI M’MUNA
ALIAS KIRIMI M’MUNA)....................................................3RDRESPONDENT
THE CHIEF LAND REGISTRAR.........................................4THRESPONDENT
(Being an application for extension of time to file and serve notice and record of appeal from the Ruling of the Environment and Land Court of Kenya at Nairobi (Eboso, J.) delivered on 18th June, 2020
in
ELC No. 147 of 2019)
*******************
RULING
The dispute before the Environment and Land Court at Nairobi revolved around a parcel of land Land Reference No. 330/507. The plaintiff in that court (Fredrick Kiptonui Kilele) sought various orders against the defendants. The defendants took a preliminary objection to the effect that thesuit was a non-starter for being time barred under the Limitation of Actions Act. That objection was considered by Eboso, J. who, in a ruling delivered on 18th June, 2020 upheld the objection and the net result was that the suit was struck out.
In the Motion before me brought under various provisions of law the applicant prays in the main that the court be pleased to extend the time for filing an appeal against the said ruling and that the notice of appeal dated 6th August, 2020 be deemed as properly filed. The Motion is supported by the grounds set out and an affidavit of Kahiga Waitindi. In sum the applicant says that neither he nor his advocates were aware of the date of the ruling; that failure to know of the date set for ruling was occasioned by non-communication of directions on delivery of the ruling by registry staff and inaccessibility of the registry for purposes of perusal of the court file; that a search at the website of Kenya Law Reports on 5th August, 2020 revealed that a ruling had been delivered; that he had then given instructions for an appeal to be filed – a notice of appeal was filed and a letter bespeaking proceedings written to Court; and the applicant should be allowed to pursue an appeal.
I did not see a replying affidavit by the respondents. I have considered material placed before me and I take the following view of the matter.
The principles which I need to consider in an application of this naturewere well set out in the case of Leo Sila Mutiso v Rose Wangari Mwangi[1999] 2 EA 233. They were identified to be:
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are first the length of the delay secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted and fourthly, the degree of prejudice to the respondent if the application is granted".
Ruling intended to be appealed was delivered on 18th June, 2020. The applicant and his advocates say that they were unaware of the date for delivery of ruling; that the registry was inaccessible as the Court was closed due to the current global COVID-19 pandemic. They say that they only came to learn that ruling had been delivered when the lawyer did a search on the website of Kenya Law Reports on 5th August, 2020 and immediately upon making that discovery a notice of appeal was filed the next day 6th August, 2020. In these circumstances I am satisfied that delay in lodging a notice of appeal has been properly explained because there was no notice that ruling was to be delivered on the day it was delivered. The explanation that the lawyers could not access the Court Registry as the courts were closed is a reasonable explanation. The dispute in the lower court involved a parcel of land and I don’t think in the circumstances where the suit was struck out through a preliminary objection that the respondents will be prejudiced. I hesitate to comment on whether the appeal has chances of success.
I allow the Motion dated 14th August, 2020. Let the applicant lodge a notice of appeal within 14 days of today and serve it on the respondents in accordance with the rules. Costs of the Motion will be in the intended appeal.
Dated and delivered at Nairobi this 23rdday of October, 2020.
S. ole KANTAI
.....................................
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
Signed
DEPUTY REGISTRAR