George Okimaru Iraru (as legal representative of the Estate of Habel Iraru Okimaru) v Margaret Welime Wanjala (as legal representative of the Estate of David Wanjala Welime) [2020] KEELC 3771 (KLR)
The bottom line
#A Kenyan land court refused to revive a decades-old dispute because the appellant waited two years to act, showing that delays without strong reasons will kill an appeal.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to extend time for filing a Notice of Appeal
The Court has jurisdiction under Section 7 of the Appellate Jurisdiction Act to extend time for giving notice of intention to appeal from a judgment of the High Court, including the Environment and Land Court
The court held that any doubt on this point was settled by the Court of Appeal in Kenya Airports Authority v Timothy Duvi Mutungi, confirming that courts of equal status to the High Court fall within the ambit of Section 7 of the Appellate Jurisdiction Act since 2010.
Exercise of discretion in extension-of-time applications
The delay of two years was inordinate; the Applicant, who was present in court when the suit was dismissed, did not explain why he did not immediately file a Notice of Appeal, pointing to dilatory conduct
The court applied the Fakir Mohammed factors. The Applicant's explanation - inability to raise Kshs 100,000 demanded by an advocate for typed proceedings - was insufficient because a Notice of Appeal is a simple and mechanical task requiring no proceedings, and no other efforts were shown. The suit had already been dismissed more than once.
Chances of success of the intended appeal
The draft memorandum of appeal disclosed no chances of success and no matter of public importance, the underlying suit having been dismissed on multiple previous occasions
The grounds of appeal alleged failure to consider relevant evidence and constitutional principles, yet the suit had already been dismissed for want of prosecution on 28th March 2017 and previously on 21st July 2009. The dispute arose over thirty years ago, and allowing the application would not serve the fair administration of justice.
Legal principles established
#- The Environment and Land Court has jurisdiction under Section 7 of the Appellate Jurisdiction Act to extend time for giving Notice of Intention to appeal from a judgment of the High Court or courts of equal status
- In applications for extension of time the court considers the period and reasons for delay, chances of success, prejudice to the respondent, effect on public administration and other relevant factors
- Extension of time is a discretionary remedy, not a right, and equity frowns upon indolent litigants
Court orders
#- 1.The Applicant's Notice of Motion dated 8th July 2019 seeking leave to file a Notice of Intention to appeal is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Okimaru Iraru (as legal representative of the Estate of Habel Iraru Okimaru) v Margaret Welime Wanjala (as legal representative of the Estate of David Wanjala Welime) [2020] KEELC 3771 (KLR)", Case Analysis (2020). Not stated in judgment (Bungoma ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3771/eng@2020-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.