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ELCPartially AllowedJudicial Review Miscellaneous Application No. 108 of 2004 (as inferred from the proceedings referred to in the judgment)

Karin Anne Challis (Suing through the Attorney Isaac Ntongai Samwel) v Attorney General & 4 others [2022] KEELC 1412 (KLR)

Environment and Land Court of Kenya (High Court)
17 February 2022
MOM.A. Odeny
1,612 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by M.A. Odeny, J at Malindi determined an ex parte application seeking leave to commence a civil suit out of time. The applicant held a 99-year lease (Grant CR No. 34486/1) over Plot No. 104 Watamu, granted in 2001. In or about September 2002 the applicant discovered that third parties had purportedly been registered as freehold proprietors of land described in Title Kilifi/Jimba/1125 (the 'illegal title'), later transferred to Abbas Lali Ahmed in 2003. The applicant explained the delay in filing suit by pointing to extensive related litigation over the same title, including Judicial Review Miscellaneous Application No. 108 of 2004 which was stayed by a ruling of 8 July 2011 directing related judicial review applications to remain in abeyance pending determination of civil suits, and HCCC No. 43 of 2005, whose judgment by Angote J was set aside in its entirety by the Court of Appeal on 8 February 2018 in Civil Appeal No. 67 of 2016. Counsel argued the delay was not intended to abuse court process and that the relief sought could not be granted in judicial review. The court applied the principles in Aviation Cargo Support Ltd v St. Mark Freight Services Ltd and Mary Wambui Kabuqa v Kenya Bus Services Ltd, holding that the discretion to extend time must be exercised judiciously, that a plausible explanation for delay is required, and that leave is merely provisional and challengeable at trial. Finding the explanation sufficient, the court granted the applicant 14 days to file the suit, failing which the leave lapses. The ruling was delivered online under Covid-19 directives, waiving Order 21(1) of the Civil Procedure Rules.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has given a sufficient explanation for the delay in filing suit
  2. 2.Whether the court should exercise its discretion to grant leave to commence/file a civil suit out of time

Key legal issues

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01

Exercise of judicial discretion to grant leave to file suit out of time

Holding

The court found the explanation for delay (pending related litigation and a stay of judicial review proceedings over the same land) sufficient and granted leave

Reasoning

The court adopted the principles in Aviation Cargo Support Ltd v St. Mark Freight Services Ltd, holding that extension of time is discretionary, exercised judiciously, and requires a plausible explanation for delay. It noted related cases over the same title, Kilifi/Jimba/1125, were stayed or pending, and that a Court of Appeal judgment of 8 February 2018 affected the same property. It also noted that leave is merely provisional and the defendant may challenge facts and law at trial. The applicant's explanation was found sufficient to warrant leave.

p. 3

Legal principles established

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  • Extension of time is a discretionary remedy to be exercised judiciously, requiring a plausible explanation for the delay
  • An applicant must satisfactorily explain delay; stale claims are discouraged as litigation must come to an end
  • A grant of leave to overcome the time bar is provisional and not final

Court orders

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  1. 1.Leave granted to the Applicant to file the suit out of time within 14 days, failing which the leave lapses

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MO
majority

Wrote the judgment

Jurisdiction invoked
Inherent discretionary power of the court to extend time for filing suits / grant leave to file suit out of time under the Civil Procedure Rules

Relief refused

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Costs of the application (no express costs order made)

The court made no express order on costs despite the prayer for costs

Costs

No express costs order made in the final disposition

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I have considered the application, the supporting affidavit and the explanation given for the delay and find that it is sufficient to warrant the court to grant leave to file a suit out of time. The Applicant is therefore granted 14 days leave to file the suit failure to which the leave lapses.
p. 3Final orders - leave granted
For the court to exercise its discretion in favour of an Applicant, the latter must demonstrate to the court that the delay in lodging the record of appeal is not inordinate and where it is inordinate the Applicant must give plausible explanation to the satisfaction of the court why it occurred
p. 3Test for extension of time
it must be remembered that even when the Judge grants leave, there is nothing final about it. It is merely provisional.
p. 3Nature of leave to file out of time

Issues in the judgment

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minor

The judgment does not state its own case number on its face; the ex parte application arises from Judicial Review Miscellaneous Application No. 108 of 2004 as described in the body of the ruling

minor

The applicant is described inconsistently in the affidavit and submissions (Issac Samuel Ntongai in the affidavit; 'she'/'her' in the body describing the applicant's conduct)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Karin Anne Challis (Suing through the Attorney Isaac Ntongai Samwel) v Attorney General & 4 others [2022] KEELC 1412 (KLR)", Case Analysis (2022). Judicial Review Miscellaneous Application No. 108 of 2004 (as inferred from the proceedings referred to in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1412/eng@2022-02-17

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