Land Settelement Fund Board of Trustees & another v Ondeng & 2 others (Miscellaneous Civil Application E035 of 2021) [2022] KEELC 3563 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Length of and reasons for the delay
The 730-day delay was inordinate and unexplained; the Supporting Affidavit merely reproduced the grounds of appeal.
Judgment was delivered on 16th December 2019 in the presence of both parties. The Supporting Affidavit failed to clearly explain the reasons for the delay of 730 days, which is far beyond the statutory 30-day period. The court found the reasons were not explained to its satisfaction, which is fatal to an extension application under section 79G.
Chances of the appeal succeeding
The intended memorandum of appeal did not raise triable issues; the appeal was an afterthought and a delay tactic.
While the court cannot determine the merits of the intended appeal at this stage, it examined the draft memorandum and found it did not raise triable issues. The court also held the application was not brought in good faith, characterising the intended appeal as an afterthought intended to deny the 1st Respondent the fruits of his judgment.
Prejudice to the Applicants
The Applicants failed to demonstrate any prejudice they would suffer if the orders were not granted.
The court found that although the Applicants were aggrieved by the lower court's judgment and wished to appeal out of time, they did not demonstrate any prejudice they would suffer if the extension and stay were refused. Absent demonstrated prejudice, the application could not stand.
Legal principles established
#- An appeal from a subordinate court to the High Court must be filed within thirty days, but may be admitted out of time if the appellant shows good and sufficient cause.
- In considering extension of time, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- Extension of time is an equitable remedy available only to the vigilant and not to the indolent.
Court orders
#- 1.The application is dismissed with costs
- On appeal from
- Kisumu Chief Magistrate's Court
- Civil Suit No. 437 of 2018
- Jurisdiction invoked
- Sections 79G, 95 and 75 of the Civil Procedure Act; Order 50 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, 2010; Article 159 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Land Settelement Fund Board of Trustees & another v Ondeng & 2 others (Miscellaneous Civil Application E035 of 2021) [2022] KEELC 3563 (KLR)", Case Analysis (2022). Kisumu High Court Civil Suit (application arising from Kisumu Chief Magistrate's Court Civil Suit No. 437 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3563/eng@2022-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.