Kisoso v Kimatet & Totona (Sued as Legal Representatives of Kiporot Ole Totona) & 3 others (Civil Application E084 of 2024) [2024] KECA 1337 (KLR)
The bottom line
#Kenya's Court of Appeal gave a litigant more time to appeal a 13-day delay caused by the court's own failure to issue notice, though she pays the respondents' costs.
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 application for extension of time to file the notice of appeal and record of appeal out of time is deserving of the orders sought
Key legal issues
#Whether the delay in filing the appeal was inordinate and sufficiently explained
The delay of about 13 days from the applicant's awareness of the ruling was not inordinate and was sufficiently explained
The applicant became aware of the reviewed judgment only on 9th August 2024 upon service by the respondents' advocates, and the respondents themselves only learned of it on 9th July 2024. Though the court noted a lack of expedition by the applicant between 9th and 22nd August 2024, the actual delay of about 13 days was short and explained by the failure to issue a notice of delivery of the ruling after the trial judge's transfer.
Whether the intended appeal is arguable
The intended appeal raises an arguable question as to whether the Court of Appeal's orders in Civil Appeal 117 of 2017 remained alive when the ELC judge implemented them
The court examined the draft memorandum of appeal and found that whether the orders of the Court of Appeal were alive or dead at the time of implementation by the ELC judge is a question worthy of consideration on appeal. The respondents had neither confirmed nor denied their own compliance with the timelines given in Civil Appeal 117 of 2017.
Legal principles established
#- The discretion to extend time under rule 4 is unfettered but must be judicially exercised, weighing period and reason for delay, chances of success, prejudice and other relevant factors
Court orders
#- 1.The motion dated 22nd August 2024 is allowed with costs to the respondents
- 2.Time is extended to file and serve the notice of appeal and record of appeal
- 3.The applicant is directed to file the notice of appeal within 14 days of the ruling
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court, Nakuru
- Nakuru ELC Case No. 267 of 2017
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time discretion)
Relief refused
#None substantive; costs were nonetheless awarded to the respondents despite allowing the motion
The court allowed the motion but ordered that costs go to the respondents
Costs
Costs of the application to the respondents
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.
The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted; the degree of prejudice to the respondent if the application is granted
Whether or not the order for extension of time should be granted lies entirely in my unfettered discretion. That discretion must however be judicially exercised.
I find that in light of the circumstances of this case the delay in filing the instant application is not inordinate and has been suficiently explained.
I therefore extend the time to file and serve the notice of appeal and record of appeal and direct the applicant to file the notice of appeal within 14 days of this ruling.
Issues in the judgment
#The court allows the motion but awards costs to the respondents, which is unusual and stated without reasons
Paragraph 12 contains an incomplete sentence, stating only "Consequently, I find that the arguable appeal."
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisoso v Kimatet & Totona (Sued as Legal Representatives of Kiporot Ole Totona) & 3 others (Civil Application E084 of 2024) [2024] KECA 1337 (KLR)", Case Analysis (2024). Civil Application (Nakuru) arising from Civil Appeal 117 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1337/eng@2024-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.