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Court of AppealAllowedCourt of Appeal Rules application under Rule 4 arising from ELC No. 168 of 2016 (Kitale)

Matafali v Luteshi (Civil Application E099 of 2021) [2021] KECA 70 (KLR)

Court of Appeal of Kenya
8 October 2021
RNR. N. Nambuye
1,324 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a farmer more time to appeal his land case, showing courts will excuse delays backed by genuine reasons.

What this practically means

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Executive summary

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This is a single-judge (Rule 4) ruling of the Court of Appeal delivered at Nairobi by Nambuye, JA, on an unopposed application by John Wekesa Matafali for leave to file a notice of appeal and record of appeal out of time against a judgment of the Environment and Land Court at Kitale in ELC No. 168 of 2016 delivered on 23rd October 2019. The applicant, a farmer living on the suit property, explained that his advocate did not attend the delivery of judgment and ceased acting without informing him, and that he himself had suffered a stroke and only recently learnt of the judgment. The court restated the principles for extension of time as crystallized by the Supreme Court in the Salat case: extension is an equitable, discretionary remedy available to a deserving party who lays a basis to the court's satisfaction, considering the length of and reason for the delay, arguability of the intended appeal, prejudice to the respondent, and promptness of the application. The delay of about one year and eight months was held not so long as in the Mama Day Nursery case where relief was declined; the uncontroverted explanation was found genuine, plausible and excusable; a draft memorandum of appeal satisfied the bona fide arguability threshold; and no prejudice to the respondent was identified. The application was allowed: fourteen days to file and serve a notice of appeal, thereafter to proceed according to law, with no order as to costs. The decision below was not disturbed; the ruling concerns only access to the appellate process.

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 has satisfied the criteria for extension of time to file a notice of appeal and record of appeal out of time
  2. 2.The length of the delay and whether it is excusable
  3. 3.The reason for the delay
  4. 4.Whether the intended appeal is arguable
  5. 5.Whether the respondent would suffer prejudice if the extension is granted

Key legal issues

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01

Extension of time under Rule 4 of the Court of Appeal Rules

Holding

Extension of time is discretionary and equitable; the applicant must explain the delay, show arguability and absence of prejudice.

Reasoning

The court applied the crystallized Salat principles: extension of time is not a right but an equitable remedy available to a deserving party; the applicant bears the burden of laying a basis; delay must be reasonably explained; prejudice to the respondent and undue delay in bringing the application are considered case by case. The applicant's stroke and his advocate's absence at judgment, uncontroverted, constituted a genuine and excusable reason; a draft memorandum satisfied arguability; no prejudice was shown.

p. 2
02

Reason for delay: advocate's default and applicant's illness

Holding

An uncontroverted explanation that the applicant's advocate ceased acting and the applicant suffered a stroke is a plausible and excusable reason for delay.

Reasoning

The applicant explained that his advocate was absent on the date of delivery of judgment and that he was suffering from a stroke, learning of the judgment only recently. The court found no reason to doubt him and held the reasons genuine, plausible and excusable, weighing them against the approximately twenty-month delay, which was shorter than in the Mama Day Nursery case where relief was declined.

p. 3
03

Arguability of the intended appeal

Holding

An arguable ground is one that is bona fide and warrants interrogation, not one that must necessarily succeed.

Reasoning

A draft memorandum of appeal was annexed. The court held that arguability does not require prospects of certain success; bona fide grounds that call for a response from the opposite party and warrant the court's interrogation suffice. The annexed grounds met that threshold irrespective of the appeal's ultimate outcome, and no prejudice to the opposite party was identified.

p. 3

Legal principles established

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    Court orders

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    1. 1.The applicant has fourteen days from the date of the delivery of the Ruling to file and serve a notice of appeal
    2. 2.The applicant to thereafter proceed according to law, not having yet been supplied with certified copies of the proceedings
    3. 3.No order as to costs

    The bench

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

    RN
    majority

    Wrote the judgment

    On appeal from
    Environment and Land Court
    ELC No. 168 of 2016 (Kitale)
    Jurisdiction invoked
    Rule 4 of the Court of Appeal Rules (extension of time)

    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.

    The applicant has fourteen days from the date of the delivery of this Ruling to file and serve a notice of appeal.
    p. 3Final orders - extension of time
    There will be no order as to costs.
    p. 3Costs order
    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
    p. 2Rule 4 principles as crystallized in Salat
    whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis
    p. 2Discretionary, case-by-case assessment

    Issues in the judgment

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    minor

    The judgment date of the ELC decision is stated as 23rd October, 2019 in the body but the heading of the application erroneously indicates 23rd October, 2021; the court notes the error itself.

    minor

    The respondent is not named in the ruling text and the applicant is the only party identified.

    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, "Matafali v Luteshi (Civil Application E099 of 2021) [2021] KECA 70 (KLR)", Case Analysis (2021). Court of Appeal Rules application under Rule 4 arising from ELC No. 168 of 2016 (Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/70/eng@2021-10-08

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