Busienei & 3 others v Chepkwony & 2 others; Karira & 3 others (Interested Party) (Civil Application E097 of 2021) [2021] KECA 56 (KLR)
The bottom line
#The Court of Appeal gave a litigant sixty extra days to file his appeal record, showing Kenyan courts will excuse short, explained delays even without a draft appeal memorandum.
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 applicant should be granted leave to file and serve the record of appeal out of time under Rule 4 of the Court of Appeal Rules
- 2.Whether the delay in filing the record of appeal has been satisfactorily explained
- 3.Whether the respondent would suffer prejudice if the extension is granted
Key legal issues
#Factors governing exercise of discretion under Rule 4
The court applies the settled Salat principles: extension of time is discretionary and equitable; the applicant must lay a basis, explain the delay, show absence of prejudice, and move without undue delay.
The court restated the seven principles crystallised by the Supreme Court in the Salat decision as governing Rule 4 applications, and assessed the applicant's explanation against them, finding the roughly one-month delay excusable and the compiled record evidence of intention to pursue the appeal.
Absence of a draft memorandum of appeal
In the absence of a draft memorandum of appeal, arguability may be gauged from other supportive facts; a compiled record ready for filing suffices to demonstrate intention to pursue the appeal.
No draft memorandum of appeal was annexed and no supportive facts on arguability were proffered, but the court held it could not ignore that the record of appeal was already compiled and ready for filing, which demonstrated the applicants' intention to progress the appeal once capacitated.
Length of delay in moving the application
A delay of about one month and two days in seeking extension after capacitation was far below delays previously held inexcusable and was excusable.
The applicant was capacitated on 1st March, 2021 with a certificate of delay; the sixty-day period lapsed on or about 1st May, 2021. The application dated 3rd June, 2021 came about one month and two days later, which the court found far below the twenty-month delay in George Mwende Muthoni and therefore excusable.
Legal principles established
#- Extension of time is an equitable remedy available only to a deserving party at the court's discretion, and the applicant bears the burden of explaining the delay to the court's satisfaction
Court orders
#- 1.The applicant has sixty (60) days from the date of the ruling to file and serve the record of appeal
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court
- ELC No. 131 of 2013
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
Relief refused
#Costs of the application
The court exercised its discretion to make no order as to costs
Costs
There will be no order as to costs.
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.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
in the absence of a draft memorandum of appeal the court can gauge the arguability of an intended appeal from other supportive facts
The applicant has sixty (60) days from the date of this ruling to file and serve the record of appeal.
There will be no order as to costs.
Issues in the judgment
#Statute misspelled in the judgment text
Internal inconsistency on the date the applicant was capacitated with the certificate of delay
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Busienei & 3 others v Chepkwony & 2 others; Karira & 3 others (Interested Party) (Civil Application E097 of 2021) [2021] KECA 56 (KLR)", Case Analysis (2021). Rule 4 application dated 3rd June, 2021 ( Miscellaneous application re: ELC No. 131 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/56/eng@2021-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.