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ELCDismissedApplication dated 24.3.2021 (arising from Meru CMCC No. 381 of 2011)· [2022] KEELC 997 (KLR)

Sharrif Ibrahim Farah v Kamenchu M’mingaine & another [2022] KEELC 997 (KLR)

Environment and Land Court
9 March 2022
1,654 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost his bid to appeal late because he couldn't explain a year-long delay or show his intended appeal had any merit.

What this practically means

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Executive summary

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The applicant, Sharrif Ibrahim Farah, sought extension of time to file an appeal against a judgment in Meru CMCC No. 381 of 2011, in which he lost a claim to 5 acres of land. He explained that an earlier extension application had been argued on 12.2.2020 with ruling reserved for 23.4.2020, but owing to Covid-19 he only learned on 5.3.2021 that the ruling had been delivered on 30.4.2020 without notice to him. Both respondents opposed, contending the ruling was emailed to the parties' advocates, courts resumed full operations in July 2020, and the delay of about a year was inordinate, unexplained and an abuse of process, especially as this was a second extension application. The applicant blamed his advocates in a supplementary affidavit, but no affidavit from the law firm supported this. Applying the principles in Nicholas Kiptoo Arap Korir Salat v IEBC and the authorities cited, the court held the discretion to extend time must be exercised judiciously to a deserving party with sufficient reason, considering the length and reason for delay and prejudice to respondents. The court found the delay inordinate and wholly unexplained: the applicant produced no evidence of registry enquiries, correspondence, or any affidavit by his advocates denying receipt of the emailed ruling. The applicant also failed to attach a draft memorandum of appeal or demonstrate the intended appeal had merits. The application was dismissed with costs.

Key legal issues

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01

Whether the delay of nearly a year in filing the appeal was excusable

Holding

The delay was inordinate and unexplained

Reasoning

The ruling was delivered on 30.4.2020 and emailed to the parties' advocates; courts resumed full operations in July 2020, yet the applicant only moved in March 2021. No affidavit from his advocates, no evidence of registry enquiries, letters or emails explaining the failure to follow up.

p. 2
02

Whether blame for non-compliance can be shifted to the advocates on record

Holding

No, absent evidence from the law firm admitting the mistakes

Reasoning

In the supplementary affidavit the applicant blamed his advocates, but no advocate or staff member swore an affidavit admitting mistake or lack of follow-up, and no affidavit was filed denying delivery of the ruling by email to the firm.

p. 2
03

Whether the intended appeal had merit sufficient to justify extension

Holding

No merits were demonstrated

Reasoning

The applicant did not attach a draft memorandum of appeal or disclose the status of the disputed land, having lost at trial after the nullification of the adjudication section and re-gazettement of the adjudication area.

p. 2

Legal principles established

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  • The discretion to extend time must be exercised judiciously to a deserving party upon sufficient reason, considering length of delay, reasons for delay and prejudice to the respondent

Court orders

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  1. 1.The application dated 24.3.2021 seeking extension of time to file an appeal is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesSections 1, 1B, 3A; Order 50 Rule 6
  • Civil Procedure ActSections 1A, 1B
  • Environment and Land Court ActSections 3 and 13

Cases cited (10)

  • Velos Enterprises Ltd-vs- Paragon Electronics Ltd
    [2018] eKLR
  • Oshwal Academy (Nairobi) & Another –vs- Induvishwanath
    [2017] eKLR
  • Azim Jiwa Rajwani –vs- Fidelity Commercial Bank (Now SBM Bank Ltd)
    [2021] eKLR
  • Leo Sila Mutiso –vs- Hellen Wangari Mwangi
    [1999] 2 E.A 231
  • Fakir Mohammed –vs- Joseph Mugambi & 2 Others
    [2005] eKLR
  • Muringa Co. Ltd –vs- Archdiocese of Nairobi Registered Trustees
    Civil Application No. 190 of 2019
  • Andrew Kiplagat Chemaringo –vs- Paul Kipkorir Kibet
    [2018] eKLR
  • Imperial Bank Ltd (In Receivership) & Another –vs- Alnashir Popa & 18 Others
    [2018] eKLR
  • Jimcab Services Ltd –vs- Bartholomew Benard Osodo & Another
    [2018] eKLR
  • Nicholas Kiptoo Arap Korir Salat –vs- Independent Electoral & Boundaries Commission
Jurisdiction invoked
Sections 1, 1B, 3A and Order 50 Rule 6 Civil Procedure Rules (extension of time under the court's inherent jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sharrif Ibrahim Farah v Kamenchu M’mingaine & another [2022] KEELC 997 (KLR)", Case Analysis (2022). Application dated 24.3.2021 (arising from Meru CMCC No. 381 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/997/eng@2022-03-09

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