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ELCDismissedEnvironment and Land Appeal 12 of 2015· [2023] KEELC 17773 (KLR)

Mbondo v Mbinda

Environment and Land Court
8 June 2023
1,606 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to revive a land appeal dormant for six years after the respondent's death, because the appellant offered no real explanation for the delay.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (Ochieng, J) determined the Appellant's Notice of Motion dated 13th October 2022, brought under Order 24 rule 7(2) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking reinstatement and revival of an abated appeal, enlargement of time to substitute the deceased Respondent (Wanza Mbinda, who died on 23rd April 2016), and her substitution with George Musau Mbinda upon taking out a limited grant ad litem. The Appellant explained that he had filed a Citation Cause which prompted the proposed substitute to apply for letters of administration intestate, and that the Respondent's counsel had indicated on 15th March 2022 that gazettement of the estate was pending. The Respondent opposed through Grounds of Opposition, arguing inordinate, unexplained delay of over six years, that no administrator had been appointed, and that the application was an afterthought by a neighbour who knew of the death. The court framed a single issue: whether to enlarge time for substitution and revive the abated appeal. Applying Ivita v Kyumbu and Raphael Musila Mutiso, the court held that the Appellant had given no plausible explanation for the delay, had moved only after being twice prompted by the Court in want-of-prosecution proceedings, and that the estate would be prejudiced if the appeal were revived. The application was found unmerited and dismissed with costs.

Key legal issues

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01

Whether time should be enlarged to substitute the deceased Respondent and revive the abated appeal

Holding

The application was refused; the delay of over six years was inordinate and unexplained and the estate would be prejudiced if the appeal were revived.

Reasoning

The Respondent died on 23rd April 2016 and the Appellant, being a neighbour, knew of the death. Apart from blaming the Respondent's counsel's statement of 15th March 2022 about gazettement, the Appellant offered no plausible reason for the delay. He moved only after the Court twice prompted him in notices to dismiss the appeal for want of prosecution. The court associated itself with Ivita v Kyumbu and the extension-of-time authorities, holding that the estate stood prejudiced.

Legal principles established

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  • The test for excusing prolonged delay is whether an explanation is given and whether justice can still be done despite the delay
  • In extension-of-time applications the explanation for the delay is the most critical consideration

Court orders

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  1. 1.The Notice of Motion Application dated 13th October 2022 is dismissed with costs
Jurisdiction invoked
Order 24 rule 7(2) of the Civil Procedure Rules and Section 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, "Mbondo v Mbinda", Case Analysis (2023). Environment and Land Appeal 12 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17773/eng@2023-06-08

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