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Court of AppealDismissedCivil Application No. 56 of 2018· [2019] KECA 765 (KLR)

Richard Kipkemei Limo v Hassan Kipkemboi Ngeny & 4 others

Court of Appeal
10 May 2019
3,148 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to overturn a judge's decision giving a landowner extra time to appeal, confirming such decisions rarely get disturbed.

What this practically means

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Executive summary

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This was a reference to the full Court under Rule 55 of the Court of Appeal Rules against a decision of a single Judge (Githinji, J.A) who had granted Richard Kipkemei Limo an extension of time to file the memorandum and record of appeal out of time from a judgment of the Environment and Land Court at Eldoret (Ombwayo, J.) dated 9th February 2018. That judgment had dismissed Limo's petition seeking declarations that his title to Eldoret Municipality Block 7/178 was valid, nullified the certificates of lease issued to Limo and Enock Kibiwott Kiptanui, and declared that the 1st respondent, Hassan Kipkemboi Ngeny, was the lawful registered proprietor. Limo lodged a notice of appeal on 20th February 2018, requested proceedings on 22nd February 2018, and filed his record on 4th May 2018, about fourteen days out of time, attributing the delay to delays by the Deputy Registrar in certifying the proceedings. Hassan Kipkemboi Ngeny, supported by the other respondents, urged the full Court to find that the single Judge misdirected himself on arguability, the reason for the delay, service of the notice of appeal and letter requesting proceedings, and the balancing of prejudice. The Court applied the test in Hezekiah Michoki and the Rule 4 guidelines in Fakir Mohammed, holding that the single Judge's discretion is unfettered, that he properly considered the service issue and the explanation for delay, that he need only find the appeal arguable, and that the value of the property was a permissible consideration. The full Court, whose role is supervisory rather than substitutive, found no basis to interfere and dismissed the reference with costs on 10th May 2019.

Key legal issues

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01

The test for interfering with a single Judge's decision on a reference to the full Court

Holding

The full Court interferes only where the single Judge took into account irrelevant factors, ignored relevant ones, applied wrong principles, or was plainly wrong; the full Court does not substitute its own discretion

Reasoning

The Court adopted the test in Hezekiah Michoki v Elizaphan Onyancha Ombongi, reiterating that the single Judge's discretion under the Rules is unfettered though judicially exercisable, and that the appellate mandate on a reference is supervisory, not substitutive, as also stated in Rozaah Akinyi Buyu v IEBC.

p. 1
02

Factors relevant to extension of time under Rule 4

Holding

The Rule 4 discretion is unfettered; delay, reason for delay, arguability, prejudice, effect on public administration, compliance with time limits, resources of the parties and public importance are relevant but not exhaustive factors

Reasoning

The Court restated the Fakir Mohammed v Joseph Mugambi guidelines and held that the single Judge appreciated his role and applied these factors, including consideration of the service issue, the reasonableness of the explanation for delay, the arguability of the appeal and the absence of demonstrated prejudice to the respondents.

p. 4
03

Whether the single Judge erred on arguability and consideration of the value of the property

Holding

The single Judge did not err: he needed only find that the appeal raised arguable points warranting consideration, and the value of the property was a permissible consideration under the unfettered Rule 4 discretion

Reasoning

The Court held the memorandum of appeal raised arguable points of law and fact; the reference to the length of the trial judgment merely buttressed that weighty issues of law were involved. The property's value, evidence of an offer for sale at Shs. 35,000,000, was a factor the single Judge could lawfully take into account under Rule 4.

p. 4
04

Whether the single Judge addressed service of the notice of appeal and the letter requesting proceedings

Holding

The single Judge did consider the service issue; non-compliance with Rule 82(1) and its proviso does not bar an applicant from applying for extension of time

Reasoning

Contrary to the respondents' contention, the single Judge expressly found there was a dispute over service of the letter of 22nd February 2018 and observed that by applying for extension of time the applicant implicitly conceded the appeal was out of time, which did not bar the application.

p. 4
05

Whether the single Judge failed to balance the parties' competing interests and prejudice

Holding

The Court was not convinced that the single Judge misdirected himself on the balance of interests and prejudice

Reasoning

The Court found the respondents had not demonstrated undue prejudice if time was extended, while the applicant would suffer prejudice as his title was registered first and he claimed to have constructed rental buildings on the plot. The full Court's role was limited to establishing that the single Judge exercised his discretion judicially.

p. 4

Legal principles established

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  • A full Court will not interfere with a single Judge's exercise of discretion unless it is shown that the single Judge took into account irrelevant factors, failed to take into account relevant factors, failed to apply correct principles, or that his decision was plainly wrong
  • The full Court's jurisdiction on a reference does not entail substituting its own discretion for that of the single Judge
  • A single Judge deciding a Rule 4 extension of time application has an unfettered discretion and may take into account the value of the subject matter of the intended appeal
  • In a Rule 4 application, a single Judge cannot make definite pronouncements on the success of the intended appeal; he need only be satisfied that the intended appeal raises issues warranting the Court's consideration

Court orders

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  1. 1.The reference to the full Court is dismissed with costs
On appeal from
Environment and Land Court of Kenya at Eldoret
Petition No. 4 of 2013
Jurisdiction invoked
Rule 55 of the Court of Appeal Rules (reference to the full Court against a decision of a single Judge), arising from a Rule 4 extension of time application

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 & 4 others", Case Analysis (2019). Civil Application No. 56 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/765/eng@2019-05-10

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