Shem Nalianya Sibitati v Francis Tendeti Wabuge [2022] KEELC 1180 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Applicant established good and sufficient cause for the delay in filing the appeal
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
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.
The legal framework governing extension of time to appeal
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
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.
Whether the authorities cited by the Applicant aided his case
No; unlike the explained COVID-19 delay in Kenya Power v Rose Anyango, the Applicant's proffered explanation was far from satisfactory
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 7th November 2021 and filed on 18th November 2021 is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.