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ELCPartially AllowedKisumu Environment and Land Case Appeal No. ... of 2020 (intended appeal from Kisumu CMCC ELC Case No. 36 of 2018)· [2021] KEELC 3520 (KLR)

Moses Ageya Kembe v Washington Okello Sule [2021] KEELC 3520 (KLR)

High Court of Kenya
29 April 2021
1,934 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The High Court in Kisumu gave a landowner 30 extra days to file an appeal, ruling that a short delay explained by Covid-19 court closures was acceptable.

What this practically means

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Executive summary

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This is a ruling of the High Court at Kisumu (Antony Ombwayo, J) on an application dated 05/05/2020 seeking extension of time to lodge an appeal against the judgment delivered on 11/03/2020 in Kisumu CMCC ELC Case No. 36 of 2018, which allowed the plaintiff's (respondent's) suit and dismissed the defendant's (applicant's) counterclaim. The application was premised on Sections 3A, 79G and 95 of the Civil Procedure Act and Article 159 of the Constitution. The applicant attributed the delay to difficulties in obtaining court proceedings and the Chief Justice's declaration of 15/03/2020 restricting court operations due to the Covid-19 pandemic. The respondent opposed, arguing the application was an abuse of process, that he had acquired rights under the judgment, and that the intended appeal lacked prospects of success. Neither party filed submissions as directed. Framing the sole issue as whether the applicant met the requirements for extension of time, the court applied the Leo Sila Mutiso principles. It held the roughly three-week delay was not inordinate and was plausibly explained, largely because the Covid-19 restrictions began four days after judgment, consistent with Kenya Power & Lighting Co Ltd v Rose Anyango. The court declined to determine the merits definitively but found the draft memorandum raised weighty issues of land ownership, alleged bias and a decision against the weight of evidence. It further found no prejudice to the respondent, the applicant having been in possession of the land since 2002. The application was allowed and the applicant given 30 days to file the appeal.

Key legal issues

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01

Whether the delay of about three weeks in filing the appeal was explained and excusable

Holding

The delay of about three weeks was not inordinate and was plausibly explained by the delay in obtaining proceedings and the Covid-19 restrictions on court operations announced shortly after the judgment.

Reasoning

The judgment was delivered on 11/03/2020 and time lapsed around 12/04/2020; the application was filed on 6/05/2020, roughly three weeks late. The court found this was not inordinate. The Chief Justice's 15/03/2020 declaration restricting court operations fell four days after judgment and probably contributed to the applicant's inability to obtain proceedings and file in time, mirroring Kenya Power & Lighting Co Ltd v Rose Anyango where a Covid-19 period delay was excused.

p. 3
02

Whether the intended appeal had chances of success

Holding

The court cannot determine the merits definitively at this stage, but from the draft memorandum of appeal the issues of land ownership, alleged bias and a decision against the weight of evidence showed the appeal was not frivolous.

Reasoning

Relying on Gerald Kithu Muchanje and Kenya Power & Lighting Co Ltd v Rose Anyango, the court held that merits are not decided at this stage. However, examining the second ground of appeal, the court noted the issues raised - ownership of land, alleged bias and a judgment against the weight of evidence - were weighty and entitled the applicant to his day in court.

p. 3
03

Whether the respondent would suffer prejudice if the extension were granted

Holding

The respondent would not be prejudiced because, although the trial court found the plaintiff was the lawful owner, the applicant (defendant) had been in possession of the property since 2002.

Reasoning

The court reviewed the pleadings and trial judgment and observed that possession had been with the defendant since 2002, when he allegedly bought the parcel from the plaintiff's uncle. This undisputed possession meant the respondent could adequately be compensated or would suffer no real prejudice from the appeal being admitted out of time.

p. 3

Legal principles established

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  • The decision whether or not to extend time for appealing is discretionary, guided by the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent.
  • There is no minimum or maximum period of delay prescribed by law; a plausible and satisfactory explanation for the delay is what unlocks the court's discretion.
  • Where no explanation for delay is given, no indulgence will be granted; the burden lies on the party seeking the extension.
  • The court does not definitively determine the merits of the intended appeal at the extension-of-time stage; it need only be satisfied the appeal is not frivolous.

Court orders

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  1. 1.The application is allowed
  2. 2.The applicant is ordered to file the appeal within 30 days from the date of the ruling

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Constitution of KenyaArticle 159

Cases cited (8)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Gerald Kithu Muchanje v Catherine Muthoni Ngare & another
    [2020] eKLR
  • Dilpack Kenya Limited v William Muthama Kitonyi
    [2018] eKLR
  • First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others
    Nairobi (Milimani) HCCC No. 2255 of 2000 [2002] 1 EA 65
  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR
  • Ratman vs. Cumarasamy
    [1964] 3 All ER 933
  • Savill vs. Southend Health Authority
    [1995] 1 WLR 1254
  • Kenya Power & Lighting Company Ltd v Rose Anyango & another
    [2020] eKLR
On appeal from
Chief Magistrate's Court, Kisumu
Kisumu CMCC ELC Case No. 36 of 2018
Jurisdiction invoked
Sections 3A, 79G and 95 of the Civil Procedure Act and Article 159 of the Constitution

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, "Moses Ageya Kembe v Washington Okello Sule [2021] KEELC 3520 (KLR)", Case Analysis (2021). Kisumu Environment and Land Case Appeal No. ... of 2020 (intended appeal from Kisumu CMCC ELC Case No. 36 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3520/eng@2021-04-29

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