Need for review and amendment of the Civil Procedure Act to empower courts to dismiss records of appeal filed out of time after a long delay by their own motion

Brief facts

At the trial court, the respondent sought orders of permanent injunction to restrain the appellants, their agents, and/or servants, from entering, claiming ownership or in any manner dealing with the suit property. It was the respondents case before the trial court that she was the registered owner of the suit property and that the appellants had refused to give vacant possession of her land. In their defence before the trial court, the appellants claimed the suit property as of their right with 2^nd appellant claiming the same as matrimonial property, and thus had overriding interests. The trial court entered judgment against the appellants. Aggrieved, the appellants lodged the instant appeal. 

The appeal was based on among other grounds that; the trial court erred in law and in fact in failing to make a finding in her judgement that the respondent was not the legal owner of the suit property and the trial court erred in law and in fact in failing to appreciate that the appellants were the occupants of the suit property and therefore they had overriding interests over the land as against the respondent.

The trial courts judgment was delivered on August 25, 2014 and the memorandum of appeal was filed on September 25, 2014; however, the record of appeal was filed on July 13, 2022 approximately 8 years after the memorandum of appeal had been filed. There was no certificate for delay to explain the delay in filing the record of appeal, there was equally no application before court for leave to admit the record of appeal out of time. 

Issues

1. Whether the requirement of spousal consent before the sale of land was applicable to a transaction concluded under the repealed Registered Land Act. 
2. Whether courts could, by their own motion, dismiss records of appeal filed out of time after a long delay. 

Held

1. PW2, indicated that the 1^st and 2^nd appellant were to be settled on another parcel of land since he had sold the suit property. Similarly, the 2^nd appellants testimony indicated that she was not landless. It followed therefrom that the impugned judgment was arrived at on the basis of the evidence on record. The ground that the judgment was arrived at on extraneous circumstances thus failed.
2. The agreement for sale therein was prepared and signed on May 6, 2011 the applicable law then was the repealed Registered Land Act; the requirement of spousal consent came in with the enactment of the Land Registration Act which came in force on May 2, 2012 and transfer therein was registered on March 28, 2012 and title issued on the same day. It followed therefrom that the provisions of the Land Registration Act could not apply retrospectively to a sale commenced on May 6, 2011 and title issued on March 28, 2012. Consequently, the issue of spousal consent was not applicable before the trial court as well as in the appeal.
3. The trial court was right to enter judgment in favour of the respondent as the title deed was conclusive evidence of proprietorship as per section 26(1) of the Land Registration Act; and the interests conferred on registration under section 24 and 25 of the Act ought to be benefit the registered proprietor. The respondent proved ownership of the suit property and the trial court was right to affirm her as the registered owner.
4. The record of appeal in the appeal was filed almost 8 years after the memorandum of appeal, and since the respondent did not move to strike out the record of appeal, the appeal had to be heard on its merits, the court proposed to the Kenya Law Reform and the Rules Committee, to review and propose an amendment to the Civil Procedure Act, to empower courts to dismiss records of appeal filed out of time after a long delay without the necessity of the respondents moving the court.