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ELCDismissedNot stated in the judgment· [2022] KEELC 2548 (KLR)

Kimatu (Suing on behalf of the Estate of John Kimatu – Deceased) v Kithinji & 4 others (Miscellaneous Application 5 of 2022) [2022] KEELC 2548 (KLR)

Environment and Land Court
13 July 2022
CNC.K. Nzili
1,605 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to let a landowner appeal late because she could not explain months of unexplained delay in her case.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court (Nzili J) on a notice of motion dated December 27, 2021 by Rael Kambura Kimatu seeking leave to file an appeal out of time against a lower court judgment delivered on March 15, 2021, which had dismissed her claim over land parcels Amwathi/Maua/5202 and Amwathi/Maua/6580. The applicant had earlier sought review, which was dismissed on August 2, 2021. She argued she had an arguable appeal supported by new evidence (a DLASO report) which her then advocates failed to present. The 3rd respondent opposed, arguing a ten-month inordinate delay, unexplained, and that he had been registered owner since 2016 without any proof of fraud, and that the applicant had not paid costs. The court applied the Salat vs IEBC principles: extension of time is an equitable remedy requiring a satisfactory explanation of the whole period of delay, absence of prejudice to respondents, and arguability. The court found the delay of nearly six months between the review dismissal and the present application unexplained, noted the applicant had elected review instead of appeal with legal consequences, and noted the absence of a concrete surveyor's report. The application was dismissed with costs to the respondents.

Key legal issues

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01

Extension of time principles

Holding

Extension of time is an equitable remedy available only to a deserving party who must lay a basis to the satisfaction of the court, explain the delay, and show absence of prejudice to respondents.

Reasoning

The court applied the Supreme Court principles in Salat vs IEBC, considering whether reasonable reasons for the delay were given, whether there was prejudice, whether the delay was inordinate, and the public interest. The applicant gave no explanation for the lapse between August 2021 and February 2022 and had earlier elected review over appeal, prejudicing the respondents.

p. 2

Legal principles established

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  • In an application for extension of time, the whole period of delay must be declared and satisfactorily explained to the court.

Court orders

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  1. 1.The application dated December 27, 2021 seeking leave to file an appeal out of time is disallowed
  2. 2.Costs to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure ActSection 79
  • Land Registration Act
  • Land Adjudication Act

Cases cited (2)

  • Leo Sila Mutiso vs Rose Hellen Wangari
    Civil Application No. 255 of 1997 (unreported)
  • Nicholas Kiptoo Korir Salat vs IEBC & 7 others
    (2014) eKLR
On appeal from
Not stated in the judgment (lower court)
Jurisdiction invoked
Order 42 Rule 6 Civil Procedure Rules as read together with Section 79 of the Civil Procedure Act

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, "Kimatu (Suing on behalf of the Estate of John Kimatu – Deceased) v Kithinji & 4 others (Miscellaneous Application 5 of 2022) [2022] KEELC 2548 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2548/eng@2022-07-13

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