Kirimi Kelly Mathiu v Isaac Muchui Mathiu & 4 others [2020] KEELC 89 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to extend appeal time where a four-and-a-half-month delay went unexplained, dismissing the application with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant provided good and sufficient cause for the four-and-a-half-month delay in filing the appeal
The delay was inordinate and unexplained; the applicant failed to show when the ruling was supplied or to obtain a certificate of delay, so the extension was refused
The court applied the Salat and Paul Wanjohi Mathenge criteria. The ruling was typed on the day of delivery, so a copy could have been obtained, and only a memorandum of appeal was required to lodge the appeal. The applicant's affidavit did not state the date of supply of the ruling or proceedings nor any certificate of delay, leaving the delay unexplained and the discretion not exercisable in his favour.
Whether the intended appeal raised triable issues and would prejudice the respondents
The court found the application lacked merit and dismissed it with costs, adopting the respondents' position that the delay was inordinate and unexplained
The respondents argued that leave is not a matter of right, the delay was inordinate and unexplained, the appeal raised no triable issues, and they would be prejudiced by frivolous litigation. The court's conclusion that the application lacked merits resolved the application without granting the extension sought.
Legal principles established
#- Extension of time is not a right but an equitable remedy available to a deserving party at the court's discretion, and the applicant bears the burden of explaining the delay to the court's satisfaction
- Under section 79G of the Civil Procedure Act, an appeal may be admitted out of time if the appellant shows good and sufficient cause for not filing in time
Court orders
#- 1.The application for extension of time to file appeal out of time is dismissed
- 2.Costs of the application to the Respondents
- On appeal from
- Principal Magistrate's Court, Tigania
- Tigania CMCC No. 28 of 2011
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 79G of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirimi Kelly Mathiu v Isaac Muchui Mathiu & 4 others [2020] KEELC 89 (KLR)", Case Analysis (2020). Miscellaneous Application (Notice of Motion dated 16th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/89/eng@2020-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.