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ELCDismissedKimilili Principal Magistrate's Court ELC Case No 54 of 2019 (appeal therein; Notice of Motion dated 7th November 2021)· [2022] KEELC 1180 (KLR)

Shem Nalianya Sibitati v Francis Tendeti Wabuge [2022] KEELC 1180 (KLR)

High Court of Kenya
28 February 2022
1,924 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court refused to extend time to appeal because the man's explanation for delay wasn't believable, so the original land judgment stands.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 7th November 2021 in which Shem Nalianya Sibitali, the unsuccessful defendant in Kimilili Principal Magistrate's Court ELC Case No 54 of 2019, sought extension of time and leave to appeal out of time against a judgment delivered by Hon G. Adhiambo (Principal Magistrate) on 29th July 2021, in which Francis Tendetti Wabuge obtained cancellation of the title to parcel KIMILILI/KIMILILI/1664. The Applicant explained the four-month delay by alleging the court file disappeared after judgment and that typing and proof-reading of proceedings took long, adding that he was illiterate and the appeal had high chances of success. The Respondent opposed, asserting the application was an afterthought meant to scuttle execution for costs, and that the file was available since his bill of costs had been taxed. Boaz N. Olao J set out Section 79G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act 2011, both permitting admission of an appeal out of time on good and sufficient cause, and applied the Supreme Court's principles in Nicholas Kiptoo arap Korir Salat v IEBC. He found the explanation implausible: no complaint was made about the missing file, the proceedings were certified ready on 23rd August 2021 yet the application was only filed on 17th November 2021, and the Applicant only moved when execution commenced. The authorities cited by the Applicant were distinguished. The application was dismissed with costs on 28th February 2022.

Key legal issues

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01

Whether the Applicant established good and sufficient cause for the delay in filing the appeal

Holding

No; the alleged disappearance of the court file was rebutted and unreported, and the Applicant did not explain why he took until 17th November 2021 to file the application despite proceedings being ready on 23rd August 2021

Reasoning

The Applicant claimed the court file disappeared after judgment, but the Respondent showed the file was available since his bill of costs was taxed. The serious allegation that the file resurfaced only after execution warranted a complaint to the head of station, which was never made. The Applicant appeared cagey about when he obtained proceedings certified ready on 23rd August 2021, and only moved when execution commenced.

p. 2
02

The legal framework governing extension of time to appeal

Holding

Under Section 79G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act, an appeal may be admitted out of time on demonstration of good and sufficient cause, guided by the Nicholas Kiptoo arap Korir Salat principles

Reasoning

The court set out the statutory provisions conferring the discretion and the seven-principle test from the Supreme Court in Salat v IEBC, including the burden on the applicant, the need to explain delay to the Court's satisfaction, prejudice to the respondent, and whether the application was brought without delay.

p. 2
03

Whether the authorities cited by the Applicant aided his case

Holding

No; unlike the explained COVID-19 delay in Kenya Power v Rose Anyango, the Applicant's proffered explanation was far from satisfactory

Reasoning

The court accepted the principle in Vishva Stone Supplies that any delay should be satisfactorily explained, but held the Applicant failed to surmount that hurdle. The Aburili J decision granting leave for pandemic-related delay rested on a plausible explanation absent here.

p. 3

Legal principles established

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  • An appeal may be admitted out of time if the appellant satisfies the Court that he had good and sufficient cause for not filing the appeal in time
  • Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps in the sequence of events
  • Extension of time is an equitable remedy available to a deserving party, and the applicant bears the burden of explaining any delay to the satisfaction of the Court
  • Evidence of a plausible and satisfactory explanation is the basis upon which the Court's discretion to extend time is anchored

Court orders

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  1. 1.The Notice of Motion dated 7th November 2021 and filed on 18th November 2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Environment and Land Court Act 2011Section 16A(1) and (2)

Cases cited (6)

  • QURESHI & ANOTHER v PATEL & OTHERS
    1964 EALR 633
  • ATTORNEY GENERAL v THE LAW SOCIETY OF KENYA & ANOTHER
    C.A Civil Appeal No 133 of 2011 [2013 eKLR]
  • NICHOLAS KIPTOO arap KORIR SALAT v I.E.B.C & OTHERS
    2014 eKLR
  • VISHVA STONE SUPPLIES COMPANY LTD v RSR STONE 2006 LTD
    [2020 eKLR]
  • LEO SILA MUTISO v ROSE HELLEN WANGARI MWANGI
    1999 2 E.A 231
  • KENYA POWER & LIGHTING COMPANY LTD v ROSE ANYANGO & HIGHRISE ENTERPRISES
    2020 eKLR
On appeal from
Kimilili Principal Magistrate's Court
ELC Case No 54 of 2019
Jurisdiction invoked
Section 79G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Shem Nalianya Sibitati v Francis Tendeti Wabuge [2022] KEELC 1180 (KLR)", Case Analysis (2022). Kimilili Principal Magistrate's Court ELC Case No 54 of 2019 (appeal therein; Notice of Motion dated 7th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1180/eng@2022-02-28

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