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Court of AppealDismissedNotice of Motion dated 27th April 2024 (arising from intended appeal against Kilgoris ELC Appeal Case No. 40 of 2021)

Rinka v Mwangi (Civil Application E056 of 2024) [2024] KECA 871 (KLR)

Court of Appeal of Kenya
19 July 2024
1,213 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to extend time for filing an appeal because the applicant repeatedly missed deadlines and offered no evidence explaining the delays.

What this practically means

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Executive summary

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Joseph Muiya Rinka, who had been the appellant before the Environment and Land Court (ELC) at Kilgoris, moved the Court of Appeal at Kisumu by Notice of Motion dated 27th April 2024, principally under rule 5(2)(b) of the Court of Appeal Rules, seeking leave to file an appeal out of time against the ruling of Hon. Justice Emmanuel Washe Mutwana delivered on 14th December 2023 in Kilgoris ELC Appeal Case No. 40 of 2021. That ruling had dismissed the applicant's motion seeking extension of time to file a record of appeal against a judgment of 29th May 2020 in the subordinate court, after an earlier record of appeal had been struck out and the applicant had failed to comply with a 14-day direction to file a fresh record. The respondent opposed, describing the application as an abuse of process that had prevented him from enjoying the fruits of his judgment. Okwengu JA, delivering a single-judge ruling, traced the applicant's serial non-compliance: late filing of the notice of appeal, a record of appeal struck out, failure to meet the extended timeline, and a late notice of appeal against the December 2023 ruling. The applicant attributed the delays to illness and financial hardship but attached no evidence of either. Applying the Supreme Court's decision in Nicholas Kiptoo arap Korir Salat v. IEBC, the court held that extension of time is an equitable remedy available only to a deserving party at the Court's discretion, and found the applicant undeserving. The application was dismissed with costs.

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 deserves an extension of time / leave to file an appeal out of time against the ELC ruling of 14th December 2023
  2. 2.Whether the applicant has demonstrated a plausible reason for the delay in filing the notice of appeal and record of appeal

Key legal issues

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01

Whether the applicant was deserving of the Court's discretionary extension of time to file an appeal

Holding

The application was dismissed because the applicant failed to give a plausible reason for the delay and his history of non-compliance showed he was not seriously pursuing the appeal.

Reasoning

The court reviewed the litigation history: a record of appeal filed late was struck out; time to file a fresh record was extended by 14 days but the applicant again filed out of time; the ELC declined further extension. The notice of appeal against the 14th December 2023 ruling was also filed late, with allegations of illness and financial difficulty unsupported by any evidence. Applying the Salat principle, extension of time is an equitable remedy reserved for deserving parties; the applicant was not deserving.

p. 3

Legal principles established

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  • Extension of time is not a right of a party but an equitable remedy available only to a deserving party at the discretion of the Court.

Court orders

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  1. 1.The application dated 27th April 2024 is dismissed with costs

The bench

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

majority

Wrote the judgment

On appeal from
Environment and Land Court at Kilgoris
Kilgoris ELC Appeal Case No. 40 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules; Appellate Jurisdiction Act; Constitution

Relief refused

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Leave to file an appeal out of time against the ruling of 14th December 2023 / extension of time

The applicant gave no plausible explanation for the delay, attaching no evidence of illness or impecunity, and his litigation conduct showed he was not serious about pursuing the appeal

p. 3

Costs

The application dated 27th April 2024 is dismissed with costs

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.

extension of time is not a right of a party, but an equitable remedy that is only available to a deserving party at the discretion of the Court
p. 3Principles governing extension of time
Consequently, the application dated 27th April 2024 is dismissed with costs
p. 3Final orders

Issues in the judgment

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minor

The name of the respondent before the Court of Appeal is not stated anywhere in the judgment; the parties are referred to only as 'the applicant' and 'the respondent'.

minor

The judgment refers to the lower court case as 'Kilgoris PMCC ELC Case No. 19 of 2019' in one passage and 'Kilgoris PMCC Case No. 19 of 2018' in another, an internal inconsistency in the case number.

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, "Rinka v Mwangi (Civil Application E056 of 2024) [2024] KECA 871 (KLR)", Case Analysis (2024). Notice of Motion dated 27th April 2024 (arising from intended appeal against Kilgoris ELC Appeal Case No. 40 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/871/eng@2024-07-19

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