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Court of AppealAllowedNot stated in the judgment (the appeal lodged was Civil No. 17 of 2018)

Richard Kipkemei Limo v Hassan Kipkemboi Ngeny, Land Registrar – Uasin Gishu, Chief Land Registrar, Eldoret Municipal Council, Attorney General & Enock Kibiwot Kiptanui (Civil Application 56 of 2018) [2018] KECA 174 (KLR)

Court of Appeal of Kenya
8 November 2018
1,482 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a 14-day late appeal can be forgiven where the delay is explained, and filing first and asking later is not an illegality.

What this practically means

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Executive summary

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This is a ruling by Githinji, JA of the Court of Appeal at Eldoret on a Notice of Motion under Sections 3A and 3B of the Appellate Jurisdiction Act, Rule 4 of the Court of Appeal Rules and Article 48 of the Constitution, seeking extension of time to file a memorandum and record of appeal and an order deeming the documents already filed as duly filed. The applicant's petition over competing certificates of lease in respect of plot Eldoret Municipality Block 7/178 was dismissed by the Environment and Land Court on 9th February 2018, which nullified the applicant's and the 6th respondent's certificates while upholding the 1st respondent's. The applicant filed a notice of appeal in time and lodged the appeal about 14 days out of the 60-day Rule 82(1) period. The respondents opposed, contending the appeal was filed out of time (an alleged illegality), that service was not effected as required, and that the appeal was not arguable. The court held the delay was neither inordinate nor unexplained, given the late certification of proceedings; that lodging a document out of time is not an illegality since Rule 12(1) obliges the Deputy Registrar to accept and mark it as lodged out of time; and that Rule 4 permits extension before or after the act. Finding the appeal arguable, the property valuable, and no undue prejudice to the respondents, the court allowed the application, extended time, deemed the appeal duly filed, and ordered costs of the application to be costs in the appeal.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted extension of time to file the memorandum of appeal and record of appeal out of time
  2. 2.Whether the delay of approximately 14 days in filing the appeal was inordinate and adequately explained
  3. 3.Whether filing an appeal out of time and thereafter applying for extension of time is an illegality that should bar relief
  4. 4.Whether the appeal is arguable and whether the respondents would suffer prejudice if extension is granted

Key legal issues

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01

Whether the delay in filing the appeal was inordinate and sufficiently explained

Holding

A delay of approximately 14 days beyond the 60-day period under Rule 82(1) was not inordinate and was reasonably explained by the late availability and certification of the proceedings.

Reasoning

The Notice of Appeal was lodged on 20th February 2018 and the appeal on 4th May 2018, about 14 days out of time. The proceedings were not ready until 12th April 2018; the applicant paid on 13th April, the proceedings were certified on 20th April and collected on 24th April. The application itself, filed 16th May 2018, was also not inordinately late. The explanation was therefore reasonable.

p. 2
02

Whether lodging an appeal out of time before seeking extension is an illegality

Holding

It is not. Rule 12(1) obliges the Deputy Registrar to accept out-of-time documents and mark them as lodged out of time, and Rule 4 permits extension before or after the act.

Reasoning

The 1st respondent argued that filing out of time and then applying for extension was remedying an illegality. The court rejected this: Rule 12(1) forbids the Deputy Registrar from rejecting out-of-time documents, which must be marked 'lodged out of time'; Rule 4 expressly allows extension whether before or after the act; and no rule prohibits the sequence adopted by the applicant. Non-compliance with Rule 82(1) does not bar an extension application.

p. 2
03

Whether the appeal is arguable and whether extension would prejudice the respondents

Holding

The appeal is arguable on points of law and fact, concerns a valuable property, and the respondents showed no undue prejudice; in the interest of justice extension should be granted.

Reasoning

The memorandum of appeal showed arguable issues of law and fact; the ELC judgment resolved disputed facts and weighty law on competing certificates of lease over the same plot. The disputed plot had been offered for sale at Shs. 35,000,000. The applicant's title was registered first and he claimed to have constructed rental buildings, while the respondents did not demonstrate undue prejudice.

p. 3

Legal principles established

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  • Rule 4 confers an unfettered discretion to extend time, to be exercised judicially in service of the ends of justice.
  • A Deputy Registrar cannot reject a document filed out of time; it must be accepted and marked as lodged out of time, so lodging out of time is not an illegality.
  • Rule 4 permits extension of time whether before or after the doing of the act for which extension is sought, and no rule bars a party from lodging a document out of time and then seeking extension.

Court orders

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  1. 1.The application for extension of time is allowed
  2. 2.Time is extended for filing the memorandum of appeal and the record of appeal
  3. 3.The memorandum of appeal and record of appeal already filed are deemed as duly filed
  4. 4.Costs of the application shall be costs in the appeal

The bench

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

majority

Wrote the judgment

Single judge ruling exercising the Rule 4 discretion to extend time; no separate opinions.

On appeal from
Environment and Land Court (ELC)
Not stated
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; Rule 4 of the Court of Appeal Rules; Article 48 of the Constitution of Kenya

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.

Under Rule 4 of the Court of Appeal Rules, the Court has unfettered discretion to extend time which discretion should be exercised judicially. The purpose of that discretion is primarily to serve the ends of justice.
p. 2Principles governing extension of time under Rule 4
Accordingly, the application is allowed. Time is extended for filing the memorandum of appeal and the record of appeal. The appeal already filed is deemed as duly filed. The costs of the application shall be costs in the appeal.
p. 3Final orders - extension of time granted and appeal deemed filed
By Rule 12(1) the Deputy Registrar cannot reject any document filed out of time by a party. The Deputy Registrar is obliged to accept the document and mark the document as “lodged out of time”.
p. 2Treatment of out-of-time documents

Issues in the judgment

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minor

The judgment refers to an affidavit of service deposing to service on the offices of respondents' advocates between 27th February 2018 and 2nd March 2018, yet elsewhere records the letter bespeaking proceedings as dated 22nd February 2018; the judgment also inconsistently states the applicant collected the proceedings on 24th April 2018 while the explanation paragraph says 'he collected them on the same day' (i.e. 20th April 2018).

minor

The applicant's name is never stated in the ruling; parties are referred to only as 'the applicant' and by respondent numbers.

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, "Richard Kipkemei Limo v Hassan Kipkemboi Ngeny, Land Registrar – Uasin Gishu, Chief Land Registrar, Eldoret Municipal Council, Attorney General & Enock Kibiwot Kiptanui (Civil Application 56 of 2018) [2018] KECA 174 (KLR)", Case Analysis (2018). Not stated in the judgment (the appeal lodged was Civil No. 17 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/174/eng@2018-11-08

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