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Court of AppealDismissedCivil Application No. 72 of 2014 (UR No. 51/2014)· [2015] KECA 668 (KLR)

Beatrice Lukalo & 1 other v Tom Lukalo

Court of Appeal
25 March 2015
717 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse a six-month delay in seeking leave to appeal to the Supreme Court, confirming every day of delay must be explained.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Visram, Maraga & Kantai, JJ.A) delivered on 25th March 2015 on a Notice of Motion dated 25th September 2014 by Beatrice Lukalo and Margaret Osolika. The applicants sought extension of time to apply for leave to appeal to the Supreme Court against the Court of Appeal's judgment of 11th July 2014 in Civil Appeal No. 95 of 2011, which had set aside a fifteen-year-old certificate of confirmation of grant and remitted the succession matter to the High Court. The applicants attributed their delay to counsel's error in sending a letter seeking instructions to a wrong address, claiming they only learned of the judgment on 1st September 2014. The respondent opposed, alleging indolence and noting the High Court had fixed the remitted matter for hearing in May 2015. The court held that although no statutory time limit governs such applications, good practice demands they be brought within a reasonable time; a delay of about four months before the application was made, and two further months between dating and filing it, amounted to an unexplained inordinate delay of six months in total. Applying its precedents requiring applicants to explain every aspect of delay, the court found no merit in the application and dismissed it with costs. The applicants' underlying complaints, including alleged res judicata, were not determined.

Key legal issues

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01

Whether the delay in seeking leave to appeal to the Supreme Court was excusable

Holding

The delay of approximately six months, including two months between drafting and filing the application, was inordinate and wholly unexplained, so extension of time was refused.

Reasoning

Even accepting the applicants only learned of the judgment on 1st September 2014, no explanation covered the period from 25th September 2014, when the application was dated, to 24th November 2014, when it was filed. The court reiterated that applicants must explain every aspect of delay, citing its prior decisions. The total six-month unexplained delay defeated the application.

p. 2
02

The standard for extension of time applications

Holding

Good practice requires such applications to be brought within a reasonable time even absent a statutory time limit, and the applicant must account for every period of delay.

Reasoning

The court observed there is no fixed time limit for such applications but imposed a reasonable-time requirement as good practice. It invoked its settled jurisprudence, citing Kenya Airports Authority v. Timothy Nduvi Mutungi and Alshabahi Ali Mohammed v. Maritime Freight Co. Ltd, that every aspect of delay must be explained.

p. 2

Legal principles established

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  • An application for extension of time must be brought within a reasonable time, and the applicant must explain every aspect of the delay.
  • In any application for extension of time, the applicant has to explain every aspect of delay.

Court orders

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  1. 1.The application for extension of time is dismissed with costs
On appeal from
Court of Appeal
Civil Appeal No. 95 of 2011
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 4, 39, 40, 41, 42 and 43 of the Court of Appeal Rules; Articles 95(2)(a), (d) & (e) and 163(3)(b) & (4)(b) of the Constitution

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, "Beatrice Lukalo & 1 other v Tom Lukalo", Case Analysis (2015). Civil Application No. 72 of 2014 (UR No. 51/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/668/eng@2015-03-25

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