Moses Ageya Kembe v Washington Okello Sule [2021] KEELC 3520 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the delay of about three weeks in filing the appeal was explained and excusable
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.
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.
Whether the intended appeal had chances of success
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.
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.
Whether the respondent would suffer prejudice if the extension were granted
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.
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.
Legal principles established
#- 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
#- 1.The application is allowed
- 2.The applicant is ordered to file the appeal within 30 days from the date of the ruling
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.