John Maitima M'Mwarama v [Respondent]
The bottom line
#Kenya's Environment and Land Court let a late land appeal proceed after 89 days because the other side showed no real prejudice and the appeal had arguable points.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of explanation for the 89-day delay
The supporting affidavit did not state reasons for the delay; counsel mentioned lack of funds, but no evidence of the applicant's financial status was placed before the court. Nevertheless, the absence of an affidavit of prejudice from the respondent and the presence of arguable points tipped the balance in favour of extension.
The court applied the Salat principles: reasons for delay, prejudice to the opposite party, and the length of the delay. It acknowledged that the affidavit failed to state reasons and that the financial-hardship claim was unsupported. However, the respondent filed no affidavit showing what prejudice the delay occasioned, and the draft memorandum of appeal raised arguable points, so the applicant was granted the opportunity to exercise the constitutional right of appeal.
Prejudice to the respondent
The respondent did not demonstrate by affidavit any prejudice that would be suffered if the appeal were filed out of time.
The court noted that the respondent's opposition was confined to the assertion that the delay of 89 days was unexplained. No affidavit was filed stating what prejudice would be occasioned or whether the subject matter had changed status such that the delay prejudiced the respondent. Absent demonstrated prejudice, this Salat factor favoured the applicant.
Arguability of the intended appeal
The draft memorandum of appeal raised some arguable points.
The court examined the attached draft memorandum of appeal and formed the view that it raised arguable points, which supported enlarging time so the applicant could exercise the constitutional right of appeal. This, combined with the absence of demonstrated prejudice to the respondent, justified allowing the application despite the unexplained delay.
Legal principles established
#- Extension of time is a discretionary power of the court, not a right of a party, exercisable upon satisfactory material; the court considers reasons for the delay, prejudice to the opposite party, and the extent of the delay.
- The court must guard against being led by sympathy where there is no excuse for the delay.
- Under Section 79G of the Civil Procedure Act the court may admit an appeal out of time if there are good reasons and sufficient cause shown.
Court orders
#- 1.The application dated 4.11.2022 is allowed
- 2.The memorandum of appeal to be filed and served within 14 days from the date of the order
- 3.Costs to the respondent in any event
- On appeal from
- Chief Magistrate's Court at Meru (Environment and Land)
- Meru No. Chief Magistrates ELC No. 63 of 2019
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act (discretion to admit an appeal filed out of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Maitima M'Mwarama v [Respondent]", Case Analysis (2023). Not stated in judgment (application dated 4.11.2022; appeal intended from Meru CM ELC No. 63 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/590/eng@2023-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.