Ramadhan Abdullai Odhiambo v Mary Alima Akong’o Rachier (suing as the legal representative of the estate of Adija Onyicha Sat) [2019] KEELC 776 (KLR)
The bottom line
#A Kenyan landowner lost his land because he waited 18 months to chase an appeal, and the court refused to forgive the delay.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC to extend time for filing a Notice of Appeal from its own judgment
The court has jurisdiction by virtue of section 7 of the Appellate Jurisdiction Act, Cap 9, contrary to the defendant's contention that only the Court of Appeal could enlarge time
The defendant argued that extension of time was the preserve of the Court of Appeal. The court disposed of this threshold point, holding it straightforward that section 7 of the Appellate Jurisdiction Act empowers the High Court to extend time for giving notice of intention to appeal from a judgment of the High Court notwithstanding expiry of the time.
Whether the plaintiff demonstrated diligence and sufficient reason for the delay
The plaintiff failed to show diligence; the delay of over 1½ years was unexplained and the application was a reaction to execution and an afterthought
The plaintiff claimed he instructed his advocates to appeal and paid a deposit, but the receipt did not indicate payment for appeal purposes and there were no written instructions. He only discovered nothing had been filed when auctioneers proclaimed his properties in March 2019, over a year and a half after judgment. He never followed up with his advocates; any remedy lies in a negligence claim against them.
The defendant's application for forceful eviction in execution of the decree
Allowed; the defendant is entitled to enforce the judgment and decree as there is no stay in place
The judgment of 6th October 2017 required the plaintiff to vacate and deliver vacant possession of plot No. 2101 within 90 days failing which the defendant could apply for warrants of forceful eviction. Since the plaintiff's application for stay failed, nothing barred execution and the defendant was entitled to the fruits of her judgment.
Legal principles established
#- The High Court has jurisdiction under section 7 of the Appellate Jurisdiction Act to extend time for giving notice of intention to appeal from its own judgment even where the time has expired
- Extension of time is discretionary and depends on the reasons for delay and whether the applicant acted diligently; inordinate and unexplained delay or lack of diligence will defeat the application
- In the absence of an order staying execution, a decree holder is entitled to execute and enjoy the fruits of the judgment
Court orders
#- 1.The plaintiff's Notice of Motion dated 22nd March 2019 seeking extension of time to file a Notice of Appeal and stay of execution is dismissed with costs to the defendant
- 2.The defendant's Notice of Motion dated 23rd April 2019 seeking forceful eviction of the plaintiff from LR Kanyamwa/Kayambo/Kwamo/2101 is allowed in terms of prayers 1, 2 and 3
- On appeal from
- High Court of Kenya at Kisii
- ELC No. 297 of 2010
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ramadhan Abdullai Odhiambo v Mary Alima Akong’o Rachier (suing as the legal representative of the estate of Adija Onyicha Sat) [2019] KEELC 776 (KLR)", Case Analysis (2019). ELC No. 297 of 2010 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/776/eng@2019-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.