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Court of AppealDismissedCivil Application E052 of 2022· [2022] KECA 1072 (KLR)

Barasa v Ramoya & 2 others

Court of Appeal
7 October 2022
PKP. O. Kiage
967 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a dormant land appeal because the applicant waited over a year without explaining the delay.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu (P. O. Kiage, JA) on a notice of motion dated April 6, 2022 by Stephen Okota Barasa seeking extension of time to file and serve a memorandum and record of appeal against the judgment of the Environment and Land Court at Busia (A. Omolo, J) dated October 29, 2020 in ELC No. 36 of 2016. A notice of appeal had been lodged by the applicant's former advocate on October 30, 2020, but the appeal was never instituted. The applicant claimed he only discovered the failure when the respondents commenced execution, and that his new advocates obtained typed proceedings on October 25, 2021. The respondents countered that the applicant was served with a notice to show cause why a warrant of arrest should not issue in July 2021 following taxation of costs, and that his current advocates came on record on August 3, 2021, yet the application was filed only on April 6, 2022 without explanation. Applying the principles in Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees, the judge found a delay of over one year and five months, with a further eight months of inaction by new counsel, inordinate and unexplained. The court held the applicant went to slumber after filing the notice of appeal and acted only when threatened with arrest. The application was dismissed in its entirety with costs.

Key legal issues

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01

Whether the delay of 1 year 5 months in filing the extension application was inordinate and excusable

Holding

The delay was inordinate and inexcusable; the applicant went to slumber after filing the notice of appeal and only instructed new advocates when served with a notice to show cause threatening arrest.

Reasoning

The court applied the Muringa Company Ltd factors: length of delay, reasons for delay, prejudice, and conduct of parties. The applicant blamed his former advocates but offered no explanation for the further 8 months of inaction by his current advocates after obtaining proceedings. His discovery of the mishap came only after the notice to show cause, evidencing indolence rather than diligence.

p. 2

Legal principles established

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  • Any delay in an extension-of-time application, no matter how slight, must be satisfactorily explained; blame-shifting to former advocates without explanation does not suffice.

Court orders

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  1. 1.Prayer to extend time declined
  2. 2.Application dismissed in its entirety with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (2)

  • Muringa Company Ltd v. Archdiocese Of Nairobi Registered Trustees
    Civil Application No 190 of 2019

    Factors for considering extension of time applications: length and reason for delay, prejudice, conduct of parties, chances of success

  • Andrew Kiplagat Chemaringo v. Paul Kipkorir Kibet
    [2018] eKLR

    That any delay, no matter how slight, must be satisfactorily explained

On appeal from
Environment and Land Court at Busia
ELC No. 36 of 2016
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application for extension of time)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Barasa v Ramoya & 2 others", Case Analysis (2022). Civil Application E052 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1072/eng@2022-10-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.