Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedMiscellaneous Application E006 of 2022· [2023] KEELC 18716 (KLR)

Katiku & another v Musulu

Environment and Land Court
5 July 2023
1,636 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court refused to extend time to appeal because the applicants could not prove what caused their 34-day delay.

What this practically means

#

Executive summary

#
The Applicants, Mwanzia Katiku and Teresia Mbatha Musembi, moved the Environment and Land Court at Machakos by Notice of Motion dated February 23, 2022 seeking leave to file an appeal out of time against the ruling of Hon. E. H. Keago delivered on December 2, 2021 in Machakos CMC ELC No E068 of 2021, in which their preliminary objection had been decided. They explained the delay by asserting that the ruling had not been typed at delivery and was only supplied to their counsel on February 2, 2022, and contended they had an arguable appeal. The Respondent, Fridah Kavindu Musulu, opposed through a replying affidavit sworn by her advocate Francis N. Sila, contending the ruling was typed at delivery, that the 30-day period lapsed on January 2, 2022, that the delay was inordinate, and that no draft memorandum of appeal or proof of arguability had been furnished. The Applicants later attached a draft memorandum. The court framed a single issue: whether there was justification to exercise its discretion to extend time. Applying Section 79G of the Civil Procedure Act and the Supreme Court's principles in Nicholas Kiptoo Arap Salat v IEBC, the court computed the 30-day period, adjusted for the Order 50 Rule 4 vacation break, as lapsing on January 25, 2022, making the delay 34 days. It found the Applicants had not explained the 28 days between receiving the typed ruling on February 2, 2022 and filing on March 1, 2022, and had produced no evidence of requesting the typed ruling. The application was dismissed with costs to the Respondent.

Key legal issues

#
01

Whether the Applicants justified extension of time to file an appeal out of time

Holding

Application dismissed; the delay was not satisfactorily explained

Reasoning

The 30-day period, adjusted for the Order 50 Rule 4 vacation break, lapsed on January 25, 2022. The Applicants attributed the delay to waiting for a typed ruling supplied on February 2, 2022, but produced no evidence of requesting the typed ruling, and did not explain the further 28-day delay from February 2 to March 1, 2022. The explanation was therefore unsatisfactory and the discretion was not exercised in their favour.

p. 4

Legal principles established

#
  • Extension of time is not a right but an equitable remedy; the applicant must explain the delay to the court's satisfaction and show absence of prejudice to the respondent

Court orders

#
  1. 1.Notice of Motion dated February 23, 2022 dismissed with costs to the Respondent

Authorities

#

Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 50 Rule 4

Cases cited (8)

  • Thuita Mwangi v. Kenya Airways Ltd
    [2003] eKLR

    extension of time requires plausible and satisfactory explanation and an arguable appeal

  • Stanley Kahoro Mwangi & 2 Others v. Kanyamwi Trading Company Limited
    [2015] eKLR

    extension of time requires plausible and satisfactory explanation and an arguable appeal

  • Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Limited & 2 Others
    [2009] eKLR

    extension of time requires plausible and satisfactory explanation and an arguable appeal

  • East African Foundry Works (K) Ltd v. Kenya Commercial Bank Limited
    [2002] eKLR

    extension of time requires plausible and satisfactory explanation and an arguable appeal

  • Leo Sila Mutiso v. Rose Hellen Kangari Mwangi
    Civil Appeal No 251 of 1997

    factors: length of delay, reason for delay, chances of success, degree of prejudice

  • Rahman v. Camarasamy
    [1964] 3 ALL ER 933

    material must be placed before court to exercise its discretion to extend time

  • Republic v. Teachers Service Commission
    Civil Appeal No Nai 7 of 2008

    material must be placed before court to exercise its discretion to extend time

  • Nicholas Kiptoo Arap Salat v. Independent Electoral and Boundaries Commission & 7 Others
    SC App. No 16 of 2014; [2015] eKLR

    principles governing the discretion to extend time

Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Katiku & another v Musulu", Case Analysis (2023). Miscellaneous Application E006 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18716/eng@2023-07-05

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