Abdalla Chogo Mzingo v John Nzaka {Deceased} & another [2022] KEELC 1266 (KLR)
The bottom line
#The Malindi Environment and Land Court refused to halt execution of its earlier ruling but gave the losing party 14 days to lodge an appeal out of time.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of about three months in seeking leave to appeal out of time was inordinate
The delay was not inordinate, taking into account the nature of delivery of the ruling vide notice
The application was filed three months after the ruling was delivered. Relying on Almas Hauliers Ltd v Abdulnasir Abukar Hassan where a four-month delay was held not inordinate, the court held that delay is measured case by case, and considering that the ruling was delivered by notice (the Applicant only became aware on 28th July 2021 when served), the three-month delay was not inordinate.
Whether the Applicant satisfied the principles for extension of time
The Applicant was granted leave to appeal out of time within 14 days
The court applied the Supreme Court principles in County Executive of Kisumu v County Government of Kisumu and the Court of Appeal principles in Vishva Stone Suppliers v RSR Stone, noting that extension of time is an equitable discretionary remedy, that the delay must be satisfactorily explained, and that the Applicant, having become aware of the ruling only upon service of the orders, filed the application expeditiously.
Legal principles established
#- An appeal against an order not listed under Order 43 Rule 1 lies only with leave, which must be sought at the time the order is made or within fourteen days
- Whether a delay is inordinate depends on the circumstances of each case; even a few days may be inordinate while a year may not
Court orders
#- 1.Application for stay of execution of the ruling dated 30th April 2021 dismissed for lack of merit
- 2.Applicant granted leave to file an Appeal out of time within 14 days, failing which the leave lapses
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya and Order 43 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdalla Chogo Mzingo v John Nzaka {Deceased} & another [2022] KEELC 1266 (KLR)", Case Analysis (2022). ELC Cause No. 93 of 2019 - Malindi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1266/eng@2022-02-22Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.