Diocese of Eldoret Trustees (Registered) v National Land Commission & 3 others [2018] KECA 655 (KLR)
The bottom line
#The Court of Appeal refused to give the Diocese of Eldoret more time to file its appeal because it explained almost none of a six-month delay.
What this practically means
#Executive summary
#Key legal issues
#Exercise of discretion under Rule 4 to extend time
The discretion must be exercised judicially in accordance with the Salat principles; the applicant bears the burden of explaining the delay to the court's satisfaction
The court applied the seven Salat factors: entitlement is not automatic; the applicant must show a reasonable reason for delay, absence of prejudice, and that the application was brought without undue delay. The applicant's delay of about six months after receipt of proceedings was inordinate and unexplained, and no fees were paid for over five months after the initial request.
Effect of a certificate of delay on computation of time
Only the period certified by the Registrar is excluded; the certificate here covered only 28th September 2016 to 19th December 2016, leaving the period to 8th June 2017 unexplained
The Registrar declined to certify the whole period, indicating the proceedings were typed within time. The certificate of delay itself showed no action was taken on the request for proceedings until fees were paid on 29th September 2016, which the applicant's explanations (stay application, missing file) did not cover.
Whether an arguable appeal was demonstrated
No; the applicant did not avail a draft memorandum of appeal, and a judgment alone is insufficient
The applicant only provided the judgment intended to be appealed after it was pointed out to be missing. The court cannot be expected to read a judgment and conjure up grounds of appeal; without a draft memorandum the arguability limb of Salat was not satisfied.
Legal principles established
#- Extension of time is an equitable remedy available only to a deserving party who must lay a basis for it, including a reasonable explanation for the delay and demonstration of an arguable appeal
- Under Rule 82(2) of the Court of Appeal Rules, the period for preparation of certified proceedings may be excluded from computation of time only where the Registrar has issued an appropriate certificate of delay
Court orders
#- 1.The notice of motion dated 8th June 2017 seeking extension of time is dismissed with costs
- On appeal from
- Environment and Land Court (High Court)
- ELC No. 2 of 2015
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (inherent discretion to extend time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Diocese of Eldoret Trustees (Registered) v National Land Commission & 3 others [2018] KECA 655 (KLR)", Case Analysis (2018). Civil Application No. NAI Eldoret of 2017 (Rule 4 motion arising from ELC No. 2 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/655/eng@2018-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.