Richard Kipmalel Chesimet v Nandi County Government (Environment & Land Case 99 of 2015) [2021] KEELC 3670 (KLR)
The bottom line
#An Eldoret land court dismissed a bid to appeal months late, confirming that only the Court of Appeal can extend time and that blaming a lawyer won't excuse delay.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant leave to appeal out of time
The court has no jurisdiction; the applicant sought leave to appeal out of time rather than extension of time to file a notice of intention to appeal, and the proper forum is the Court of Appeal under Rule 4 of the Court of Appeal Rules
Section 7 of the Appellate Jurisdiction Act empowers the High Court only to extend time for giving notice of intention to appeal from a High Court judgment. The applicant instead sought leave to appeal out of time, which does not exist in appeals to the Court of Appeal. Rule 4 of the Court of Appeal Rules governs extension applications, and that discretion lies with the Court of Appeal. The application was therefore struck out for want of jurisdiction.
Whether the delay was adequately explained
Obiter: had jurisdiction existed, the 183-day delay was unexplained; blaming previous counsel without evidence is insufficient
The application was filed 183 days after judgment. The applicant attributed the delay to previous counsel failing to communicate the judgment, but exhibited no correspondence or steps taken. Citing Annah Mwihaki Wairuru, the court noted an advocate is expected to be upright and dependable, and mere blame of counsel cannot excuse inordinate delay; reasonableness of delay is assessed case by case.
Stay of execution pending appeal
Refused because no appeal is pending, so stay pending hearing and determination of an appeal is not tenable
Although the applicant invoked Order 42 Rule 6 requirements of substantial loss, no unreasonable delay and security, and alleged substantial loss of Kshs 30,000 per month loss-of-earnings damages, there was no filed appeal. An order of stay pending the hearing and determination of an appeal presupposes a pending appeal; absent one, such an order cannot issue.
Legal principles established
#- The High Court's power under section 7 of the Appellate Jurisdiction Act extends only to extension of time for giving notice of intention to appeal from a judgment of the High Court, not to granting leave to appeal out of time to the Court of Appeal; extension of time for lodging an appeal is a matter for the Court of Appeal under Rule 4 of the Court of Appeal Rules
- Mere blame of previous counsel is not a sufficient explanation for undue delay in filing a notice of appeal or application
- Stay of execution pending appeal cannot issue where no appeal is pending
Court orders
#- 1.The application for leave to file an appeal out of time is struck out with costs to the respondent
- 2.The application is dismissed with costs to the respondent
- Jurisdiction invoked
- Order 42 of the Civil Procedure Rules; sections 79G and 95 of the Civil Procedure Act; section 7 of the Appellate Jurisdiction Act (invoked by the applicant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Kipmalel Chesimet v Nandi County Government (Environment & Land Case 99 of 2015) [2021] KEELC 3670 (KLR)", Case Analysis (2021). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3670/eng@2021-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.