Permanent Secretary, Ministry of State for Defence & another v Mahat Kuno Roble & 4 others [2018] KECA 783 (KLR)
The bottom line
#The Court of Appeal refused the Attorney General extra time to appeal a Kshs 1.5 million land damages award, because every delay went unexplained.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing and serving the notice of appeal and in filing the extension application was explained
The applicants failed to explain any of the periods of delay from becoming aware of the judgment until filing the application
The applicants' advocates became aware of the judgment on 25th September 2016, filed the notice on 5th October 2016 but served it only on 4th November 2016, contrary to rule 77(1), and did not file the extension application until 25th May 2017. None of these delays was explained, and the court cannot be blamed because there was no proof the applicants knew the judgment date.
Whether the intended appeal had chances of success
In the absence of a draft memorandum of appeal, the applicants failed to demonstrate that the intended appeal was arguable with high chances of success
Counsel conceded no draft memorandum was filed and gave no reason for its omission. The trial court had found the respondents held valid titles, that the land was never gazetted as public land for the Garissa Barracks, and that the applicants demolished a boundary wall in breach of a court order. Public interest assertions about military occupation were insufficient.
Whether the respondents would suffer prejudice if extension was granted
The respondents demonstrated prejudice as the applicants remain in occupation and have not paid the damages awarded
The applicants were still occupying the suit properties, had not complied with the trial court's judgment, and had not paid the Kshs 1,500,000.00 in general damages awarded for violation of the respondents' Article 40 rights. Granting extension would therefore further prejudice the respondents.
Legal principles established
#- In an extension of time application the court considers the length of the delay, the reasons for the delay, the chances of success of the intended appeal and the degree of prejudice to the respondent
- Every period of delay must be explained by the party at fault before the discretion under rule 4 can be exercised
- Extension of time is a discretionary remedy, not a right, available only to a deserving party who lays a basis for the exercise of the discretion
- Timelines in the Court's Rules are not ornamental; a party who fails to comply must offer an appropriate explanation
Court orders
#- 1.The application dated 28th April 2017 is dismissed with costs to the respondents
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for extension of time before a single Judge)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Permanent Secretary, Ministry of State for Defence & another v Mahat Kuno Roble & 4 others [2018] KECA 783 (KLR)", Case Analysis (2018). Civil Application No. Nai. 51 of 2017 (as inferred from the record). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/783/eng@2018-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.