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ELCDismissedEnvironment and Land Civil Miscellaneous Application E026 of 2021· [2022] KEELC 15324 (KLR)

Nduati & 2 others (Suing as the legal representative of the Estate of Lawrence Nduati Gachorohio) v County Government of Nairobi & 2 others

Environment and Land Court
1 November 2022
2,310 words in judgment
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The bottom line

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A Kenyan court refused a second chance to file a late appeal because the applicants gave no credible explanation for repeated delays.

What this practically means

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Executive summary

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The applicants, suing as legal representatives of the estate of Lawrence Nduati Gachorohio, brought a chamber summons dated March 1, 2022 under Order 50 Rule 5 of the Civil Procedure Rules and Sections 79G, 1A, 1B and 3A of the Civil Procedure Act seeking a second extension of time to file a memorandum of appeal against a subordinate court judgment delivered on August 28, 2020. A first extension application dated February 19, 2021 had been allowed by a ruling delivered on October 12, 2021, but the memorandum of appeal was not filed within the seven days allowed. The applicants blamed miscommunication by holding counsel, online connectivity challenges and their upcountry residence, claiming they were unaware the ruling had been delivered. The respondents opposed, arguing there was no satisfactory explanation for the delay and that the application abused court process. The court framed three issues: inordinate delay, whether leave should be granted, and costs. Applying the Salat principles, Mogeni J found the applicants' claim of ignorance of the ruling date contradicted by the record, as their advocate was in court when the ruling date was reserved. The successive six-month gaps in bringing the applications were unexplained, and the applicants had also failed to serve the application from March to July 2022. Holding that no good and sufficient cause was demonstrated, the court dismissed the application with costs to the respondents.

Key legal issues

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01

Whether the applicants demonstrated good and sufficient cause for a second extension of time to file a memorandum of appeal

Holding

The application was dismissed; no sufficient cause was shown for the delay in filing the memorandum of appeal after the first extension was granted on October 12, 2021

Reasoning

The court found the applicants' claim of ignorance of the ruling date contradicted by the record, since their advocate was in court when the ruling date was reserved. The explanation of miscommunication and upcountry residence was unsatisfactory, and the applicants also delayed serving the application from March to July 2022, showing lack of commitment.

p. 3
02

Whether the application was brought without inordinate delay

Holding

The second application, filed about six months after the October 12, 2021 ruling, was inordinate and unexplained

Reasoning

The subordinate court judgment was delivered on August 28, 2020; the first extension application came six months later, and the second came another six months after the ruling. The applicants failed to explain these successive gaps, failing the Salat principle that the application be brought without undue delay.

p. 3

Legal principles established

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  • Extension of time is an equitable remedy, not a right, available only to a deserving party who satisfactorily explains the delay
  • The right of appeal must be balanced against the successful litigant's right to enjoy the fruits of judgment
  • A reason for delay must be specific and not based on guess work

Court orders

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  1. 1.The application dated March 1, 2022 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 50 Rule 5

Cases cited (5)

  • Nicholas Kiptoo Arap Salat vs IEBC & 7 others
    2014 eKLR

    Extension of time is an equitable remedy; party must explain delay satisfactorily and consider prejudice and length of delay

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2015] eKLR

    Guiding principles for extension of time

  • M/s Portreitz Maternity Vs James Karanga Kabia
    CA No 63 of 1997

    Right of appeal must be balanced against plaintiff's right to enjoy fruits of judgment

  • Monica Malel & Anor Vs R
    CA No 246 of 2008

    Reason for delay must be specific and not based on guess work

  • Haywood V Cope
    (1858) 25 Beav 140

    Discretion must be exercised according to fixed and settled rules

Jurisdiction invoked
Order 50 Rule 5 of the Civil Procedure Rules and Sections 79G, 1A, 1B and 3A 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, "Nduati & 2 others (Suing as the legal representative of the Estate of Lawrence Nduati Gachorohio) v County Government of Nairobi & 2 others", Case Analysis (2022). Environment and Land Civil Miscellaneous Application E026 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15324/eng@2022-11-01

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