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Court of AppealAllowedCivil Application No. 140 of 2020

Simea Jamin Alfred & 7 others v Esther Nelima Manyasa [2021] KECA 723 (KLR)

Court of Appeal of Kenya
19 March 2021
1,493 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 allowed eight applicants to appeal a land case out of time, showing courts will forgive short, explained delays to reach a decision on the merits.

What this practically means

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Executive summary

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This is a single-judge (in chambers) ruling of the Court of Appeal at Kisumu by Nambuye, JA, on the applicants' Notice of Motion dated 2nd November 2020 seeking extension of time to file an appeal out of time against the judgment of the Environment and Land Court at Kakamega (Matheka, J.) delivered on 23rd June 2020 in ELC Case No. 21 of 2017, together with a deeming order for the draft memorandum and record of appeal. The application cited Rules 31 and 41 of the Court of Appeal Rules and Article 159 of the Constitution. The court held these were the wrong provisions - Rule 4 is the proper rule - but, invoking the non-technicality principle in Article 159, considered the application on its merits. Applying the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat v. IEBC (extension of time as a discretionary, equitable remedy judged by length and explanation of delay, arguability and prejudice), the court found the applicants' notice of appeal filed outside the 14-day window required regularization, but the delay of 17-18 days after receipt of certified proceedings on 15th October 2020 was not inordinate and was sufficiently explained. The draft memorandum raised arguable grounds (overriding interests of persons in actual occupation, fraud in the registration, adverse possession, and the severity of eviction orders). The respondent, served but not opposing, showed no prejudice. The application succeeded: 14 days to file and serve the notice of appeal, 60 days to lodge the memorandum and record of appeal, and no order as to costs given the undefended application. The decision below was not disturbed.

Questions the Court framed

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

  1. 1.Whether the applicants should be granted leave to lodge an appeal out of time against the judgment of the ELC at Kakamega delivered on 23rd June, 2020
  2. 2.Whether, upon extension of time, the draft memorandum of appeal and record of appeal should be deemed properly filed

Key legal issues

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01

Whether the application, though citing the wrong Rules (31 & 41 instead of Rule 4), could be considered on its merits

Holding

The court held that Rules 31 and 41 are merely procedural, that the proper provision is Rule 4 of the Court of Appeal Rules, but that Article 159's non-technicality principle obliged it to consider the application on the merits despite the wrong citation.

Reasoning

The judge deliberately flagged the erroneous invocation as 'purported'. Rules 31 and 41 do not fall for consideration in such an application; Rule 4 is the proper provision. Nonetheless, Article 159 enjoins substantive justice over technicality, so the court proceeded to determine the application on its merits under Rule 4 rather than strike it down for the defective citation.

p. 2
02

Whether the delay of about 17-18 days after receipt of certified proceedings, and the late notice of appeal, warranted extension of time

Holding

The delay was neither inordinate nor unexplained; it was sufficiently and plausibly explained and therefore excusable, and the intended appeal was arguable, with no prejudice shown by the respondent.

Reasoning

The notice of appeal was filed outside the 14-day period in Rule 75(1) and (2) and required regularization, but the applicants were handicapped by delayed certified proceedings received on 15th October 2020. The application followed about 17-18 days later, which was not inordinate and was excusably explained. The draft memorandum raised arguable grounds including overriding interests, fraud and adverse possession, and the respondent, being undefended, showed no prejudice.

p. 2

Legal principles established

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  • Extension of time is not a right but an equitable remedy available to a deserving party at the court's discretion, exercised case by case on settled principles.
  • The factors governing extension of time are the length of the delay, the reasons for the delay, arguability of the appeal and prejudice to the opposite party.

Court orders

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  1. 1.The applicants have fourteen (14) days of the date of the reading of the ruling to file and serve the notice of appeal
  2. 2.The applicants have sixty (60) days from the date of the lodging of the notice of appeal to lodge the memorandum and record of appeal
  3. 3.No order as to costs, the application being undefended

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya (Environment and Land Court, Kakamega)
ELC Case No. 21 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (invoked by applicants under Rules 31 & 41 of the Court of Appeal Rules and Article 159 of the Constitution of Kenya, 2010)

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 applicants have fourteen (14) days of the date of the reading of this ruling to file and serve the notice of appeal.
p. 2final orders - extension of time to file notice of appeal
The applicants have sixty (60) days from the date of the lodging of the notice of appeal to lodge the memorandum and record of appeal.
p. 2final orders - time to lodge memorandum and record of appeal
The application being undefended there will be no order as to costs.
p. 2final orders - costs
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. 2principles governing extension of time (as taken from Nicholas Kiptoo Arap Korir Salat)

Issues in the judgment

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minor

The ruling is dated and delivered at Nairobi though the heading places the Court of Appeal at Kisumu; also, the applicants' stated grievance (a grant of representation confirmed in the deceased's estate) sits oddly with an appeal against an ELC judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Simea Jamin Alfred & 7 others v Esther Nelima Manyasa [2021] KECA 723 (KLR)", Case Analysis (2021). Civil Application No. 140 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/723/eng@2021-03-19

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