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Court of AppealDismissedCivil Application (extension of time) dated 18th July, 2024 arising from ELC Case No. 334 of 2017

Sande v Board of Trustees Church of God East Africa (Mwihila Mission) (Civil Application E096 of 2024) [2025] KECA 851 (KLR)

Court of Appeal
16 May 2025
FTF. Tuiyott
1,099 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to excuse a 2½-year delay in filing an appeal, because the applicant's explanations weren't truthful.

What this practically means

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Executive summary

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This was a single-judge application before the Court of Appeal at Kisumu under Rule 4 of the Court of Appeal Rules, 2022, seeking extension of time to file and serve a notice of appeal and record of appeal out of time against the judgment of the Environment and Land Court in ELC Case No. 334 of 2017 (N.A. Matheka J, delivered by D.O. Ohungo J on 14th December 2021). The applicant, Michael Sande, explained the delay of 2 years 7 months by claiming ignorance of the judgment, his counsel's failure to act on instructions, and his arrest and committal to civil jail in execution proceedings. The respondent opposed, pointing to the applicant's letter of 31st January 2022 requesting proceedings and judgment, a certificate of delay showing the copy was ready by 20th June 2022, and his release from civil jail on 15th November 2023. The court restated the settled Rule 4 factors: length of delay, reasons for the delay, chances of the appeal succeeding, and prejudice to the respondent, citing Leo Sila Mutiso v Rose Hellen Wangari Mwangi. It found the applicant less than candid, noting his own letter and the certificate of delay contradicted his claim of ignorance, and that he filed the application 8 months after leaving civil jail. The application was dismissed with costs. The underlying appeal was never filed, so the ELC judgment remains undisturbed.

Key legal issues

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01

Whether the reasons given for the 2 years 7 months delay justified extension of time under Rule 4

Holding

The application was dismissed because the applicant was less than candid and the reasons given did not satisfactorily explain the inordinate delay.

Reasoning

The applicant claimed ignorance of the judgment until February 2024, but his own letter of 31st January 2022 requesting proceedings and judgment, and a certificate of delay showing the copy was ready for collection on 20th June 2022, showed he knew of the judgment much earlier. He was also released from civil jail on 15th November 2023 yet filed the application 8 months later. Counsel's failure to act did not excuse his own inaction.

p. 2

Legal principles established

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  • The single judge's discretion under Rule 4 to extend time, though unfettered, is guided by settled considerations: length of delay, reasons for delay, chances of appeal succeeding, and prejudice to the respondent.
  • A notice of appeal must be filed within 14 days of the decision intended to be challenged, excluding the Christmas recess period under rule 3(e).

Court orders

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  1. 1.The application dated 18th July, 2024 is dismissed with costs
On appeal from
Environment and Land Court
ELC Case No. 334 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (single judge sitting on behalf of the Court, power to extend 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, "Sande v Board of Trustees Church of God East Africa (Mwihila Mission) (Civil Application E096 of 2024) [2025] KECA 851 (KLR)", Case Analysis (2025). Civil Application (extension of time) dated 18th July, 2024 arising from ELC Case No. 334 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/851/eng@2025-05-16

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