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ELCDismissedNotice of motion dated 14/8/2023 (Civil Appeal arising from Gatundu CMCC No. 104 of 2019)· [2024] KEELC 588 (KLR)

Njeri v Guchora (Miscellaneous Application E014 of 2023) [2024] KEELC 588 (KLR)

Environment and Land Court
6 February 2024
BEB M Eboso
890 words in judgment
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The bottom line

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The Environment and Land Court refused to extend time for an appeal because the applicant could not explain a five-and-a-half-month delay.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Thika (B M Eboso J) determines a notice of motion dated 14/8/2023 by Charles Njoroge Njeri seeking enlargement of time to lodge an appeal against a judgment delivered by Hon H M Nganga on 4/11/2020 in Gatundu Chief Magistrate Court Civil Case No. 104 of 2019. The applicant explained that he had erroneously filed his appeal in the High Court at Kiambu, where it was heard and dismissed on 1/3/2023 by Chigiti J for want of jurisdiction, and that his delay in bringing the present application was occasion by illness. The respondent, Joseph Karamo Guchora, opposed the application through a replying affidavit sworn on 13/9/2023, contending that the applicant took five months to file it, that the judgment was rendered on 4/11/2020, that he had been denied the fruits of his judgment, and that ignorance of jurisdiction is no defence. The court framed a single question: whether the application met the criteria for enlarging time, drawing on the Supreme Court's Salat criteria. The court found that the medical documents tendered did not explain the applicant's inaction from 1/3/2023 to 15/8/2023, and that no satisfactory explanation justified the 5½ months' delay since the ill-fated appeal was dismissed, let alone the 2 years and over 9 months since the impugned judgment. Holding that the criteria for enlargement of time were not satisfied, the court rejected the application for lack of merit and ordered the applicant to bear the costs of the application.

Key legal issues

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01

Whether the applicant satisfied the Salat criteria for enlargement of time to lodge an appeal

Holding

The application failed; no satisfactory explanation for the delay from 1/3/2023 to 15/8/2023, the judgment sought to be appealed having been rendered on 4/11/2020

Reasoning

The court applied the seven-pronged Salat criteria. The impugned judgment was delivered on 4/11/2020 and the limitation period under Section 79G lapsed long before. The applicant's excuse for filing in a court without jurisdiction and his claimed sickness were unsupported by medical evidence covering the period from 1/3/2023, when the Kiambu High Court dismissed his appeal, to 15/8/2023 when this application was filed. Without a proper explanation, and given the prejudice to the respondent denied the fruits of judgment, the discretion could not be exercised in his favour.

p. 2

Legal principles established

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  • Extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court, and the applicant bears the burden of laying a basis to the satisfaction of the court
  • A party seeking extension of time must give a reasonable and satisfactory explanation for the delay covering the entire period of inaction

Court orders

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  1. 1.The application dated 14/8/2023 is rejected for lack of merit
  2. 2.The applicant shall bear costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 79G

Cases cited (1)

  • Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
On appeal from
Chief Magistrate's Court at Gatundu
Civil Case No. 104 of 2019
Jurisdiction invoked
Section 79G of the Civil Procedure Act (inherent jurisdiction to enlarge time for lodging an appeal)

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, "Njeri v Guchora (Miscellaneous Application E014 of 2023) [2024] KEELC 588 (KLR)", Case Analysis (2024). Notice of motion dated 14/8/2023 (Civil Appeal arising from Gatundu CMCC No. 104 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/588/eng@2024-02-06

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