Julius Joab Burudi & 4 others v Jim Habil Mkimbo
The bottom line
#The Court of Appeal refused to extend time to appeal because the applicants gave no good reason for a two-year delay, and poverty is not an excuse.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants' explanation for the delay of approximately two years and three months was plausible and satisfactory
It was not; ignorance of the law and lack of money do not constitute satisfactory explanations, the latter being covered by Rule 112 relief from fees
The ruling was delivered on 29th May, 2018 and the application filed on 8th September, 2020, a delay of about two years and three months. The applicants attributed it to ignorance and financial constraints. The court found the reasons neither plausible nor satisfactory, holding that Rule 112 of the Court of Appeal Rules already provides a mechanism for impecunious appellants to seek relief from fees and security, so impecuniosity cannot justify delay.
Whether the respondent would be prejudiced by the extension
Yes; further delay would deny the respondent access to the suit property and infringe his right to property under Article 40 of the Constitution
The court balanced the injustice to the applicants of denying an extension against the prejudice to the respondent of granting one. The respondent asserted his constitutional right to property and protection under Article 40. The court concluded that any further delay would be prejudicial because it would deny the respondent access to the suit property, tilting the balance against the applicants.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary and turns on four considerations: length of delay, reason for delay, (possibly) chances of the appeal succeeding, and degree of prejudice to the respondent
- Impecuniosity is not a valid reason for extending time to lodge an appeal, since relief from fees is available under Rule 112 of the Court of Appeal Rules
- There is no minimum or maximum period of delay; what matters is a plausible and satisfactory explanation
- A single judge does not determine with finality whether an intended appeal has merits; the chances-of-success consideration is prefixed with the word 'possibly'
Court orders
#- 1.The prayer to extend time to file and serve a notice of appeal out of time was declined
- 2.The application dated 8th September, 2020 was dismissed with costs to the respondents
- On appeal from
- Environment & Land Court at Kakamega
- ELC No. 252 of 2017
- Jurisdiction invoked
- Rules 4, 47 and 43 of the Court of Appeal Rules; sections 47, 50 and 159 of the Constitution invoked by the applicants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Joab Burudi & 4 others v Jim Habil Mkimbo", Case Analysis (2021). Civil Application (not fully stated in judgment; application dated 8th September, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/737/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.