Wellington Lusweti Barasa & 74 others v Lands Limited & another [2015] KECA 552 (KLR)
The bottom line
#The Court of Appeal refused 75 land occupants more time to appeal their eviction, ruling a seven-month unexplained delay was inexcusable and the case had already been overtaken by events.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of over seven months in filing the record of appeal was excusable
The delay was inordinate and unexplained; the notice of appeal was not served on the respondents, the letter bespeaking proceedings was not copied to them, and no certificate of delay was filed, so the applicants could not invoke the proviso to rule 82.
The court noted that the notice of appeal, though defective, was filed within time on 4th November 2014 but was never served, and no reasons for that failure were given. The applicants could not rely on the proviso to rule 82 because their letter bespeaking proceedings was not copied to the respondents. With no certificate of delay and no sufficient explanation for the seven-month delay, the discretion could not be exercised in their favour.
Whether the intended appeal was arguable
The intended appeal was not shown to be arguable; the court had already expressed grave doubt about arguability in dismissing an earlier stay application, and the applicants advanced nothing to show that view was erroneous.
In a prior stay-of-execution application, the court had stated that the applicants were employees or children of employees occupying the land with permission, so time could not run for adverse possession. The applicants neither advanced argument nor cited authority to persuade the court that this position was wrong in law, so the arguability limb of the extension-of-time test failed.
Whether the application had been overtaken by events
The application was overtaken by events because the applicants had already been evicted from the suit land pursuant to the eviction order executed on 28th May 2015, as confirmed by police documentation.
The second respondent produced a letter from the OCPD Eldoret East confirming the eviction was carried out on 28th May 2015 with routine surveillance ongoing and no squatters remaining on the land. Although the applicants disputed full eviction, the documentary evidence showed the decree had been executed, rendering the sought relief and status quo order academic.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary, and the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- The court's discretion on extension of time must be exercised reasonably, considering the applicant's conduct and whether a belated grant would prejudice the respondent or take away accrued vested rights.
- For purposes of an adverse possession claim, time does not run in favour of a person in occupation of land with the consent of the owner.
Court orders
#- 1.The application is dismissed with costs to the respondents
- On appeal from
- High Court of Kenya, Eldoret
- Eldoret E & L Case No. 931 of 2012
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules and sections 3, 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wellington Lusweti Barasa & 74 others v Lands Limited & another [2015] KECA 552 (KLR)", Case Analysis (2015). Civil Application (Eldoret) arising from Eldoret E & L Case No. 931 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/552/eng@2015-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.