Omar Said Abdall v Kombo Hassan Kombo [2018] KEELC 2048 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a late appeal because the applicant never received notice of the ruling date, and the missing notice of appeal wasn't fatal.
What this practically means
#Executive summary
#Key legal issues
#Whether the explanation for the delay justifies enlargement of time
Yes - the applicant was unaware of the delivery date because notice went to former advocates and the respondent only served a bill of costs on 18 January 2018; the application followed within a month.
The court found the delay flowed from lack of notice of the delivery date, which was satisfactorily explained. The respondent did not contest the change of advocates and also failed to notify the applicant until serving the bill of costs for taxation. The one-month delay after service was not inordinate.
Whether failure to annex a notice of appeal was fatal
No - the omission is curable under Article 159 of the Constitution and would not have changed the fact that time had lapsed.
The respondent did not cite the rules requiring the notice or the consequences of omission. The court held the essential task was to persuade the court of satisfactory explanation for delay and absence of prejudice, not the annexure of a notice of appeal.
Whether the respondent would suffer prejudice
No prejudice was demonstrated; following Edward Njane Ngang, the extension was granted.
Relying on Waithaka J's decision in Edward Njane Ngang & Another v Damaris Wanjiku Kamau & Another, where similar facts led to extension, the court noted the respondent had not informed the court of any prejudice if the application were allowed.
Legal principles established
#- An applicant seeking extension of time must give a plausible and satisfactory explanation for the delay to unlock the court's discretion; the list of relevant factors is not exhaustive.
- Failure to annex a notice of appeal to an extension-of-time application is not fatal where the delay is satisfactorily explained and no prejudice is shown.
Court orders
#- 1.Time for filing an appeal against the Ruling delivered on 31/08/2017 in ELC No. 560 of 2011 enlarged
- 2.The applicant to file and serve the Notice of Appeal within 14 days from the date of the ruling, failing which the window granted shall automatically lapse
- 3.Each party to meet their own costs of the application
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act Cap 9; Order 50 rule 6 and sections 1A, 1B, 3A & 95 of the Civil Procedure Act; Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar Said Abdall v Kombo Hassan Kombo [2018] KEELC 2048 (KLR)", Case Analysis (2018). ELC No. 560 of 2011 (motion dated 22nd February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2048/eng@2018-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.