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Court of AppealDismissedNairobi Civil Application (Nakuru)

Tito Kenyatta v Joseph Gathitu Karenju [1984] KECA 69 (KLR)

Court of Appeal of Kenya
20 November 1984
AKA.A Kneller
1,940 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the land sale lacked Land Control Board consent, making the appeal hopeless.

What this practically means

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Executive summary

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This is a single-judge ruling by Kneller JA of the Court of Appeal at Nakuru, delivered on November 20, 1984, on a motion under rules 4 and 42 of the Court of Appeal Rules by Tito Kenyatta seeking leave to appeal out of time against the judgment of Mbaya J of the High Court at Eldoret of May 7, 1982, which had dismissed his appeal against a refusal to set aside a default judgment entered in a Kshs 20,000 claim by Joseph Gathitu Karenju. The claim concerned plot 71 in the Sango Settlement Scheme, agricultural land, for which the respondent alleged he had paid Kshs 20,000 in 1969; the Land Control Board refused consent, rendering the transaction void under section 6 of the Land Control Act. The applicant, asserting illiteracy, never entered appearance; default judgment was entered, his application to set it aside was refused by the magistrate and on appeal by the judge, and the plot was sold at auction to Robert Maina Chege, with the applicant evicted. The court applied its amended rule 4 discretion retrospectively, noted precedents on extension of time (including John Kuria v Kelen Wahito and Belinda Murai v Amos Wainaina), but held that the delay was inordinate, the respondent and purchaser would be prejudiced, and, decisively, that even a lease without Land Control Board consent would be a nullity, so the intended appeal was doomed to fail. The application was dismissed with costs to the respondent, with liberty to apply in writing within seven days for the full court to vary, discharge or reverse the orders under rule 54(1)(b).

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court should extend time for the applicant to file an appeal out of time from the judgment of Mr Justice Mbaya
  2. 2.Whether the delay was inordinate and whether the applicant would suffer prejudice
  3. 3.Whether the intended appeal had any merit

Key legal issues

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01

Extension of time under rule 4 of the Court of Appeal Rules

Holding

The discretion to extend time exists even for events before the amendment, but it was refused here

Reasoning

Rule 4 as amended allows the court to extend time on such terms as it thinks just, retrospectively. The court considered the subject matter, notice to the respondent, and the cause of the delay, but found the delay inordinate and the appeal without merit, so the discretion was exercised against the applicant.

p. 3
02

Effect of section 6 of the Land Control Act on the intended appeal

Holding

Both the sale and the lease of the agricultural plot without Land Control Board consent were void, leaving the applicant no defence and rendering the appeal hopeless

Reasoning

The board refused consent to the transfer, making the sale void. The applicant's alternative defence of a lease fared no better, since a lease of agricultural land without consent is equally a nullity. A doomed appeal could not justify extending time.

p. 3

Legal principles established

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  • A void land control transaction leaves an applicant with no defence, so an extension of time to appeal will be refused where the appeal is doomed to fail
  • Dilatoriness or mistake by an advocate does not necessarily slam the door of justice against a litigant

Court orders

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  1. 1.The applicant's application for extension of time to appeal is dismissed
  2. 2.The applicant must pay the respondent the costs of the application
  3. 3.Each party may apply in writing to the deputy registrar at Nakuru or Nairobi within seven days for the orders to be varied, discharged or reversed by the full court under rule 54(1)(b)

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AK
majority

Wrote the judgment

On appeal from
High Court at Eldoret
Not stated
Jurisdiction invoked
Rules 4 and 42 of the Court of Appeal Rules (cap 9)

Relief refused

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Extension of time to file an appeal out of time

The delay was inordinate, the appeal had no meritorious defence because the land transaction was void under section 6 of the Land Control Act, and allowing the application would prejudice the respondent and the purchaser

p. 3

Costs

The applicant must pay the respondent the costs of the application

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

And so the applicant has no defence to the respondent’s claim and, in my view, an appeal to this court, is doomed to fail and it is a service to the applicant to tell him so now.
p. 3Merit of intended appeal
Furthermore, the delay is inordinate and if this application were allowed, it would cause undue prejudice to the respondent and the purchaser.
p. 3Inordinate delay and prejudice
As it is, however, in the exercise of my discretion, his application fails and he must pay its costs to the respondent.
p. 3Final orders - costs
Each party may apply to have these orders varied, discharged or reversed by the full court by applying in writing to the deputy registrar of this court in Nakuru or Nairobi within seven days from today.
p. 4Final orders - right to apply to full court

Issues in the judgment

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minor

No appeal or application number appears in the judgment; caseNumber could not be determined

minor

Decision is a single-judge ruling under rule 42 subject to reference to the full court, not a judgment of the full court

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, "Tito Kenyatta v Joseph Gathitu Karenju [1984] KECA 69 (KLR)", Case Analysis (1984). Nairobi Civil Application (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/69/eng@1984-11-20

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