Joseph Mungai Gichuru & another v National Land Commission & 2 others [2021] KEELC 429 (KLR)
The bottom line
#The High Court refused to extend time to appeal because the applicants never personally explained their delay—an affidavit from their lawyer wasn't enough.
What this practically means
#Executive summary
#Key legal issues
#Whether extension of time to file Notice of Appeal should be granted
Application dismissed because the delay was unexplained; the Applicants' advocate knew the judgment date but no affidavit explained the failure to lodge the Notice of Appeal in time.
The court noted the record showed counsel for the Applicants was present when the judgment date was reserved and pronounced. Neither the Applicants nor their former advocate swore an affidavit explaining the failure to file the Notice of Appeal. The new advocate deponed to facts properly within the Applicants' knowledge, which the court held to be erroneous. Applying the Mutiso discretion factors, the delay of some six months was unexplained and inordinate.
Whether counsel could depone to matters of fact within the Applicants' knowledge
The court held it was erroneous for the new advocate to depone to facts, such as how and when the Applicants learned of the judgment, that only the Applicants or the advocate on record could know.
The court observed that the deponent was neither a party nor the advocate on record at the time the judgment was delivered. Matters such as service of the judgment and when the Applicants found it dropped on the land could only be deponed to by the Applicants themselves. Absent a proper affidavit from them, the reason for the delay remained unexplained.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary and considers the length of delay, reason for delay, chances of appeal succeeding and degree of prejudice to respondents.
- A litigant seeking extension of time must personally depone to the facts explaining the delay; counsel cannot depone to facts only within the litigant's knowledge.
Court orders
#- 1.Leave granted to the firm of Njenga Maina & Advocates to come on record in place of Njuguna, Kahari & Kiai Advocates (prayer (a))
- 2.Application dated 19th April 2021 dismissed with costs, save for prayer (a)
- On appeal from
- High Court of Kenya (Nairobi)
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act, Cap 9
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mungai Gichuru & another v National Land Commission & 2 others [2021] KEELC 429 (KLR)", Case Analysis (2021). Judicial Review Miscellaneous Application (Notice of Motion dated 19th April, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/429/eng@2021-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.