Chepkwony v Kaura Barngetuny (Suing as the Adm. of the Estate of Stonik Orwacho) (Environment and Land Miscellaneous Application E004 of 2021) [2022] KEELC 137 (KLR)
The bottom line
#A Kenyan court dismissed a request to appeal late because the applicant failed to show the appeal had any realistic chance of succeeding.
What this practically means
#Executive summary
#Key legal issues
#Whether there was inordinate delay in filing the application for leave to appeal out of time
There was no inordinate delay, as the applicant presumably filed promptly after being served with the eviction order in January 2022, though he left the court to speculate on when he became aware of the judgment.
The applicant did not disclose when he learnt of the judgment of 27th May 2020. The eviction order annexed was received at Mulot Police Station on 7th January 2022 and presumably served soon thereafter, with the application filed shortly after. The court found no inordinate delay but criticised the applicant for leaving the timing of his awareness to speculation.
Whether the applicant satisfied the conditions for leave to appeal out of time
The application failed because the court could not determine the chances of the appeal succeeding without perusing the judgment sought to be appealed against.
Applying the three APA Insurance conditions, the court found no inordinate delay and no prejudice to the respondent given the applicant's occupation of the suit property for nearly 30 years. However, the third condition — the chances of appeal succeeding — could not be assessed because the court did not peruse the lower court judgment, rendering the application unmeritorious despite the claim of no notice of the judgment.
Legal principles established
#- The powers of the court in deciding an application for extension of time are discretionary and unfettered.
- Three conditions govern leave to appeal out of time: length of delay, prejudice to the respondent, and chances of the appeal succeeding.
Court orders
#- 1.The application is dismissed with no orders as to costs
- On appeal from
- Chief Magistrates' Court (judgment by Hon. Wakahiu CM)
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 78, 79(a) of the Civil Procedure Act and Order 42 Rules 6 and 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chepkwony v Kaura Barngetuny (Suing as the Adm. of the Estate of Stonik Orwacho) (Environment and Land Miscellaneous Application E004 of 2021) [2022] KEELC 137 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/137/eng@2022-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.