Erick Odhiambo Ong’ondo v Aloice Obongo Ongus [2022] KEELC 1097 (KLR)
The bottom line
#Kenya's Homa Bay Environment and Land Court gave a litigant 45 extra days to appeal, finding his illness explained the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the appeal was inordinate and whether extension of time should be granted
The admitted delay was not inordinate enough to deny the applicant an opportunity to appeal, given his constitutional rights of access to justice and fair hearing
The court adopted the guidelines in Bagajo v Christian's Children Fund Inc and the seven principles in Nicholas Kiptoo Korir Arap Salat v IEBC. It found the delay admitted but not inordinate, noting the applicant's illness and his rights under Articles 48 and 50(1). The draft memorandum of appeal disclosed triable issues, so the appeal was not frivolous, and the respondent would not be prejudiced as it could respond once the appeal was filed.
Whether the intended appeal is arguable
The draft memorandum of appeal shows triable issues and is not frivolous on its face
The court examined the annexed draft intended memorandum of appeal and discerned triable issues, relying on Ogada v Mollin and Onyango Oloo v Attorney General. It reasoned the applicant would have the opportunity to argue the merits and the respondents a chance to respond, meaning no party would suffer prejudice from the extension.
Legal principles established
#- Extension of time is an equitable remedy available only to a deserving party at the discretion of the court, and the applicant bears the burden of explaining the delay.
- An appeal may be admitted out of time where the appellant shows good and sufficient cause for not filing in time.
Court orders
#- 1.The application dated 5th January 2022 and filed on 7th January 2022 is allowed
- 2.The applicant is granted forty five (45) days from the date of the order to file and serve the Respondents with the record of appeal
- 3.Costs of the application to abide the intended appeal
- On appeal from
- Senior Principal Magistrate's Court, Homa Bay
- Environment and Land Case No. 44 of 2020
- Jurisdiction invoked
- Sections 3A and 1A of the Civil Procedure Act; Order 51 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules, 2010; Section 79G of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erick Odhiambo Ong’ondo v Aloice Obongo Ongus [2022] KEELC 1097 (KLR)", Case Analysis (2022). Homa Bay ELC (extension of time application arising from Homa Bay SPM's Environment and Land Case No. 44 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1097/eng@2022-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.