ATANASIO MWIKA vs LAND ADJUDICATION OFFICER – NYAMBENE DIRECTOR OF LAND ADJUDICATION & ICHENGI THURANIRA [2002] KECA 147 (KLR)
The bottom line
#Kenya's Court of Appeal granted a litigant more time to appeal despite a 20-day delay, stressing that every affected party must be served.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 20-day delay in filing the application for extension of time was inordinate.
- 2.Whether, notwithstanding the absence of a clear explanation for the delay, the Court should exercise its discretion in favour of the applicant by extending time to file a notice of appeal and lodge the record of appeal.
Key legal issues
#Whether the 20-day delay in filing the application for extension of time was inordinate.
No. Although the applicant's affidavit did not clearly explain the delay, the court found that, in the circumstances of the case, a delay of 20 days was not inordinate.
The court acknowledged that the affidavit in support failed to clearly state the reason for the twenty-day delay. It nonetheless held that delay must be assessed in the circumstances of the case: the applicant had filed a notice of appeal within time and served the first and second respondents within the prescribed period under rule 76(1), and the appeal had been struck out solely because the third respondent, a person affected, had been omitted from service. Against that background the short delay did not displace the discretion to extend time.
Whether the discretion to extend time for filing the notice of appeal and lodging the record of appeal should be exercised in the applicant's favour.
Yes. The application was granted in full: the applicant was to file a notice of appeal within 7 days and lodge the record of appeal within 14 days of filing the notice.
The court weighed the applicant's promptness in filing and serving the original notice of appeal on the first and second respondents in terms of rule 76(1) against the omission of the third respondent from service, which had caused Civil Appeal No. 106 of 1999 to be struck out. Finding the subsequent twenty-day delay not inordinate, the judge exercised the rule 4 discretion in the applicant's favour and fixed consequential timelines: seven days to file a fresh notice of appeal and fourteen days from that filing to lodge the record of appeal, with costs in the appeal.
The consequence of failing to serve a person affected by the appeal with the notice of appeal.
The appeal is liable to be struck out where a person affected by it is excluded from service; that is why Civil Appeal No. 106 of 1999 was struck out.
The ruling records that the notice of appeal was served on the first and second respondents within the prescribed time in terms of rule 76(1), but that the third respondent — described as a person undoubtedly affected by the appeal — was excluded from service. The court states that it was for that reason that Civil Appeal No. 106 of 1999 was struck out. This recital supplies the context for the extension application and reflects the court's practice on service of notices of appeal, rather than the ratio of the present decision.
Legal principles established
#- A delay of some twenty days in filing an application for extension of time, even where the supporting affidavit does not clearly explain the delay, is not necessarily inordinate and does not necessarily bar the exercise of the court's discretion to extend time.
- A notice of appeal must be served on every person affected by the appeal; where a person affected is excluded from service, the appeal is liable to be struck out.
Court orders
#- 1.The application is hereby granted.
- 2.The applicant to file a notice of appeal within 7 days from 1st November 2002.
- 3.The applicant to lodge the record of appeal within 14 days from the date of filing the notice of appeal.
- 4.The costs of the application to be in the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- The superior court (not specifically named in the ruling)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, cited in the ruling as 'rule (4) of the Rules of this Court', the provision governing extension of time for filing a notice of appeal and lodging a record of appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result the application is hereby granted. The applicant do file a notice of appeal within 7 days from today’s date and thereafter to lodge his record of appeal within 14 days from the date of filing the notice.
The costs of the application shall be in the appeal.
That notwithstanding and in the circumstance of this case, such delay was not inordinate so as to stop me from exercising my discretion in favour of the applicant.
Excluded from the service was the 3rd respondent in this application who no doubt was a person affected by the appeal. For this reason Civil Appeal No. 106 of 1999 was struck out by this Court
Issues in the judgment
#The ruling does not state the names of the parties or the number of the present application; caseTitle and caseNumber are necessarily placeholders, the only case number appearing being that of the struck-out appeal.
The date on which Civil Appeal No. 106 of 1999 was struck out is not stated, so the '20 days delay' in filing an application lodged on 30th May 2002 cannot be anchored to a trigger date on the face of the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ATANASIO MWIKA vs LAND ADJUDICATION OFFICER – NYAMBENE DIRECTOR OF LAND ADJUDICATION & ICHENGI THURANIRA [2002] KECA 147 (KLR)", Case Analysis (2002). Not stated in the ruling (the related appeal is Civil Appeal No. 106 of 1999). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/147/eng@2002-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.