Makembo Kaya Kimemia v Silas Nyaga & 6 others [2020] KEELC 462 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a bid to appeal late, ruling Covid-19 could not excuse a delay that started four months before the pandemic.
What this practically means
#Executive summary
#Key legal issues
#Whether the Covid-19 pandemic justified the delay in filing the Notice of Appeal
The delay was not attributable to the pandemic; the period for filing appeals lapsed around 20th December 2019, about four months before the pandemic affected court operations
The judgment sought to be appealed was delivered on 21st November 2019, and the window for filing an appeal closed on or around 20th December 2019. The Covid-19 pandemic only disrupted court operations in Kenya around March/April 2020, roughly four months later. The court therefore found that the applicant's delay was a product of indolence rather than the pandemic, and the excuse advanced failed on the facts.
Whether the absence of the Applicant's advocates at the delivery of judgment warranted extension of time
No; judgments are delivered in open court on appointed days whether advocates are present or not, and absence of an advocate has never been an excuse for extension of time
The applicant argued that judgment was delivered in the absence of advocates on record. The court held that judgments are routinely delivered in open court on the appointed date regardless of whether counsel attend, and that an advocate's absence does not constitute a ground for excusing delay or extending time within which to lodge an appeal. This ground therefore also failed to justify the exercise of the court's discretion in the applicant's favour.
Whether the delay in supplying proceedings and judgment (due to Covid-19) excused the delay
Although proceedings and judgment were only supplied in July 2020 due to the pandemic, this did not excuse the failure to file the Notice of Appeal within the statutory period
The applicant explained that she applied personally for proceedings and judgment, which were supplied only in July 2020 because of the pandemic. However, the court's analysis focused on the lapse of the appeal period in December 2019, long before the pandemic. The court did not treat the late supply of certified proceedings as curing the failure to file a Notice of Appeal within the statutory thirty-day window, and dismissed the application accordingly.
Legal principles established
#- In deciding whether to extend time for appealing, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent
- The absence of an advocate when a judgment is delivered is not a basis for extension of time to appeal
Court orders
#- 1.The application dated 2nd September 2020 is dismissed with the result that all orders applied for are denied
- 2.Costs are awarded to the respondents
- Jurisdiction invoked
- Rule 7 of the Appellate Jurisdiction Act Cap. 7 Laws of Kenya and Order 51(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makembo Kaya Kimemia v Silas Nyaga & 6 others [2020] KEELC 462 (KLR)", Case Analysis (2020). ELC CASE NO. 13 OF 2017 (Application dated 2nd September 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/462/eng@2020-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.