Francis G Manyara v Richard Muracha [2021] KEELC 875 (KLR)
The bottom line
#The Environment and Land Court gave a litigant a second chance to appeal despite a long delay, but struck out the other side's late affidavit for ignoring court directions.
What this practically means
#Executive summary
#Key legal issues
#Striking out of the respondent's replying affidavit filed out of time
The replying affidavit was disallowed as it was filed out of time and without leave, and the applicant would be greatly prejudiced as he would have no opportunity to respond
Directions on filing submissions had been issued on 23rd September and 12th October 2021, and the respondent's counsel had sought and been granted ample time, confirming willingness to file within three days. Court directions should be complied with absent exceptional and compelling reasons. Counsel did not seek leave to deem the affidavit duly filed. Allowing it would prejudice the applicant who had no opportunity to respond.
Whether to grant leave to file an appeal out of time
Extension of time was granted despite an inordinate delay of over one year and nine months, the delay being explained by the applicant's medical condition, and the draft memorandum of appeal revealing an arguable case
Applying the Salat principles, the court weighed the length and reason for the delay against prejudice to the respondent. The delay was inordinate but explained by the applicant's medical condition, amounting to extenuating circumstances. The draft memorandum set out an arguable case with possibility of success, and the applicant should not be denied access to the seat of justice. Discretion was exercised in the applicant's favour subject to strict timelines and lapse in default.
Legal principles established
#- Extension of time is an equitable remedy, not a right, available to a deserving party at the discretion of the court, dependent on reasons for delay, prejudice and other factors
- The statutory time limit under Section 79G cannot be waived by parties; delay is inexcusable unless sufficient cause is shown and the respondent is not prejudiced
- A court may allow an out-of-time affidavit or evidence where no undue prejudice is caused to the other party, guided by Article 159(2)(d) of the Constitution
Court orders
#- 1.Extension of time granted for filing of the appeal
- 2.The applicant to file and serve a notice of appeal within 14 days from the date of the ruling
- 3.The applicant to compile, file and serve the record of appeal within 30 days from the date thereof
- 4.In default of compliance with (i) and (ii), the orders issued to automatically lapse
- 5.Each party to bear its own costs of the application
- On appeal from
- Chief Magistrate's Court, Milimani Commercial Courts
- Civil Suit No. 3111 of 2018
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act and Section 16A of the Environment and Land Court Act (discretionary jurisdiction to extend time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis G Manyara v Richard Muracha [2021] KEELC 875 (KLR)", Case Analysis (2021). ELC Miscellaneous Application arising from Notice of Motion dated 10th September 2021 (referencing Milimani Commercial Courts Civil Suit No. 3111 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/875/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.