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ELCDismissedMiscellaneous Application arising from SRM ELC Case No. 26 of 2015 at Moyale· [2020] KEELC 3542 (KLR)

Amina Omar Munye & another v Ali Eymoy Abdi [2020] KEELC 3542 (KLR)

Environment and Land Court
19 February 2020
LMLucy N. Mbugua
1,023 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to extend the deadline to appeal a land case because the applicants waited over three months without explaining the delay or attaching the judgment.

What this practically means

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Executive summary

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This was a Notice of Motion dated 12/07/2019 under Sections 1A, 1B, 3A, 65(1)(c) and 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, in which the applicants sought extension of time to file and serve a memorandum and record of appeal against the judgment and decree of the subordinate court in SRM ELC Case No. 26 of 2015 at Moyale, a dispute over encroachment on Plot No. 442 by the respondent's purported Plot No. 5093 in Moyale Sub-County, Marsabit. The applicants argued they were aggrieved by the decision but had lacked money for the appeal, having no gainful employment or business, and now had sufficient funds; they relied on the Salat principles and asserted an arguable appeal. The respondent opposed, contending the application was in the wrong forum since extension under Section 95 should be sought in the court that delivered the judgment, that the delay since 21/03/2019 was inordinate and unexplained, that no arguable appeal was established, and that he would suffer prejudice. The court framed a single issue: whether to grant leave to appeal out of time. It noted that under Section 79G appeals must be filed within thirty days unless good and sufficient cause is shown, and applied the Salat principles. Judgment had been delivered on 20/02/2019 and the application came three and a half months late, which the court found to be inordinate delay, agreeing with authority that an unexplained three-month delay is unreasonable. The applicants also failed to attach the judgment or decree. The application was dismissed with costs to the respondent.

Key legal issues

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Whether the applicants had established good and sufficient cause for the delay in filing the appeal within the 30 days prescribed by Section 79G

Holding

The application failed; the delay of three and a half months was inordinate, the applicants' explanation of lack of funds was insufficient, and they had not even attached the judgment or decree they sought to appeal against

Reasoning

The court applied the Salat principles for extension of time. Judgment was delivered on 20/02/2019 and the appeal window expired on 21/03/2019; the application came three and a half months later. Relying on authority that an unexplained three-month delay is unreasonable, the court found the delay inordinate. The applicants' failure to attach the judgment or decree demonstrated they were taking the matter lightly, so the discretion was not exercised in their favour.

p. 2

Legal principles established

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  • Extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court, and the applicant bears the burden of explaining the delay to the court's satisfaction

Court orders

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  1. 1.The Notice of Motion dated 12/07/2019 seeking extension of time to file and serve the memorandum and record of appeal is dismissed
  2. 2.Costs of the application to the respondent
On appeal from
Senior Resident Magistrate's Court, Moyale (SRM ELC Case No. 26 of 2015)
26 of 2015
Jurisdiction invoked
Sections 1A, 1B, 3A, 65(1)(c) and 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules; Section 79G

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, "Amina Omar Munye & another v Ali Eymoy Abdi [2020] KEELC 3542 (KLR)", Case Analysis (2020). Miscellaneous Application arising from SRM ELC Case No. 26 of 2015 at Moyale. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3542/eng@2020-02-19

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