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Court of AppealDismissedCourt of Appeal Civil Appeal (unnumbered in judgment; arising from Kerugoya Environment and Land Court Civil Appeal No. 23 of 2013)

Munyi v Mwangi & another (Civil Appeal 26 of 2017) [2022] KECA 29 (KLR)

Court of Appeal of Kenya
4 February 2022
3,140 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 confirmed that stalled appeals filed late without the court's permission will be struck out, even if a lawyer is blamed.

What this practically means

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Executive summary

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The appellant, Simon Gachoki Munyi, had purchased land parcel Mwerua/Gitaku/832 from the 2nd respondent and obtained a registered transfer. The 1st respondent, claiming the land was matrimonial property, obtained a decree from the Kerugoya Senior Resident Magistrate's Court ordering re-transfer. The appellant appealed and obtained a stay of execution, and his appeal was admitted on 26 July 2011 with directions to file and serve the record of appeal within 21 days. He did nothing until the 1st respondent moved to strike out the appeal under section 3A of the Civil Procedure Act, Order 42 rule 12 and Order 51 rule 1; the Environment and Land Court at Kerugoya struck out the appeal by a ruling dated 20 December 2016. Before the Court of Appeal, the appellant argued that the wrong provisions had been invoked and that the court should have proceeded under Order 42 rule 35(1). The Court framed two issues: whether section 3A was properly invoked, and whether discretion was properly exercised. The Court held that the appellant had deliberately stalled the appellate process by filing the record nearly three years late without leave or explanation, an abuse of process justifying invocation of the inherent jurisdiction. It further held that blame could not simply be laid on his advocate, and that the delay was prolonged and inexcusable, so the judge rightly declined to reinstate the appeal. This second appellate court found no basis to interfere with the exercise of discretion. The appeal was dismissed with costs to the 1st respondent.

Questions the Court framed

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

  1. 1.Whether the first appellate court was right in striking out the appeal under section 3A of the Civil Procedure Act
  2. 2.Whether the court rightly exercised its discretion in striking out the appellant's appeal for want of prosecution, and for declining to reinstate the appeal

Key legal issues

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01

Whether section 3A of the Civil Procedure Act could be invoked to strike out an admitted appeal for want of prosecution

Holding

Yes. The inherent power exists to prevent abuse of court process, notwithstanding specific provisions under Order 42 governing appeals.

Reasoning

The court held that despite the appellant being ordered to file and serve the record of appeal within 21 days, he neglected to comply, stalling the appellate process. The delay of nearly three years without leave or explanation constituted an abuse of process. Section 3A preserves the court's inherent power to make orders necessary for the ends of justice and to prevent abuse of process, and the overriding objective permits courts to weed out unacceptable delay.

p. 4
02

Whether the discretion to strike out the appeal and decline reinstatement was properly exercised

Holding

Yes. The delay was prolonged and inexcusable, and the explanation of an advocate's oversight was insufficient.

Reasoning

The court applied the test from Ivita v Kyumba: whether the delay is prolonged and inexcusable, and whether justice can be done despite the delay. The appellant offered only his advocate's 'accidental oversight' as explanation, with no affidavit from the advocate accepting responsibility nor material showing the client had prompted the advocate. Parties must follow up their own litigation; the judge properly found the delay inordinate and unexplained, and the second appellate court had no basis to interfere with that discretion.

p. 6
03

Consequence of failing to file a record of appeal within the time directed

Holding

Once the period for filing the record lapsed with no leave obtained, the appeal could not proceed and striking out was the only recourse for the respondent.

Reasoning

Relying on Bwana Mohamed Bwana, Patrick Kiruja Kithinji and Munir Abubakar Masoud, the court noted that without a record of appeal a court cannot determine an appeal, that an appeal filed out of time without leave is incompetent and that lateness is not curable under Article 159. The appellant filed the record nearly three years late without leave, so the appeal was susceptible to striking out.

p. 4

Legal principles established

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  • A court may invoke its inherent jurisdiction under section 3A of the Civil Procedure Act to strike out an appeal where the appellant offers no plausible explanation for inordinate delay in prosecuting the appeal
  • An appellate court will not interfere with a trial court's exercise of discretion unless it misdirected itself or was clearly wrong, resulting in injustice
  • A litigant cannot simply blame advocates on record for transgressions in the conduct of litigation; parties have a duty to follow up their cases
  • An appeal filed out of time without leave is not curable under Article 159 of the Constitution

Court orders

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  1. 1.The appeal is dismissed with costs to the 1st respondent

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court at Kerugoya
Kerugoya Environment and Land Court Civil Appeal No. 23 of 2013
Jurisdiction invoked
Second appellate jurisdiction under the Appellate Jurisdiction Act over an appeal from the High Court/Environment and Land Court ruling striking out an appeal for want of prosecution

Relief refused

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The appellant's appeal against the striking out of his appeal

The delay in filing the record of appeal was prolonged, inordinate and unexplained, and blame could not be laid at the advocate's door

p. 6

Costs

Costs of the appeal awarded to the 1st respondent

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.

In my view, in a case such as this, where the appellant has not ofiered any plausible explanation for the inordinate and unreasonable delay in prosecuting his appeal a Court of law is perfectly in order to have such an appeal struck out by invoking its inherent jurisdiction under section 3A of the Civil Procedure Act, because such delay is clearly an abuse of the Court process.
p. 3Inherent jurisdiction to strike out appeals stalled by inordinate delay
The appeal is without merit and is accordingly dismissed with costs to the 1st respondent.
p. 6Final orders - dismissal with costs
It is so ordered.
p. 6Disposition
It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel
p. 6Client's duty to pursue own litigation
we find that an appeal filed out of time is not curable under Article 159.
p. 4Article 159 does not cure out-of-time filings
the Courts' discretion to set aside Judgment or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice.
p. 5Discretion not available to deliberate obstruction

Issues in the judgment

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minor

The judgment gives inconsistent dates for the admission of the appeal: 27th July 2011 in one passage, 25th July 2011 in another, and 26th July 2011 in two further passages.

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, "Munyi v Mwangi & another (Civil Appeal 26 of 2017) [2022] KECA 29 (KLR)", Case Analysis (2022). Court of Appeal Civil Appeal (unnumbered in judgment; arising from Kerugoya Environment and Land Court Civil Appeal No. 23 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/29/eng@2022-02-04

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