Family Bank Kenya Limited v Omanga (Suing as the Personal Legal Representative of the Estate of Margret Adhiambo Omanga - Deceased) & 3 others (Environment and Land Appeal E021 of 2022) [2024] KEELC 1341 (KLR)
The bottom line
#A Kenyan court struck out appeal documents filed late because the party ignored earlier court orders and offered no credible excuse for the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st respondent's application to strike out the appellant's Amended Record of Appeal and Supplementary Record of Appeal filed out of time should be allowed
Yes; the documents were filed out of time in breach of the court's orders of 24th October 2022 and without extension of time, so they were struck out
The court had on 24th October 2022 granted the appellant 60 days to file the amended record and supplementary record of appeal. The appellant filed on 6th February 2023, out of time and without seeking extension. The court held that court orders are made to ensure effective and efficient administration of justice without delay, and the appellant offered no plausible and satisfactory explanation for the breach. The disobedience was therefore not curable and the first application merited allowance.
Whether the appellant deserved extension of time to file and serve the Amended Memorandum of Appeal and Supplementary Record of Appeal out of time
No; the application failed the Salat principles - there was no plausible explanation for the breach of the 24th October 2022 orders nor for the five-month delay in bringing the second application
Extension of time is an equitable remedy available to a deserving party at the court's discretion, not a right. The appellant admitted non-compliance with the orders of 24th October 2022 and delayed five months before originating the second application. Relying on Chemaringo, Mutiso and Kakuta Maimai Hamisi, the court held that unexplained delay, even of a day, is fatal, and that Article 159(2)(d) is not a general whitewash curing all defaults of litigation.
Legal principles established
#- Court orders must be obeyed; failure to comply without plausible and satisfactory explanation is not curable by invoking Article 159(2)(d)
- Any delay in litigation must be explained plausibly and satisfactorily; even a one-day delay is fatal if unexplained
Court orders
#- 1.The first application dated 3rd March 2023 is allowed in terms of prayer number (1) therein: the Appellant's amended record of appeal and supplementary record of appeal lodged on 6th February 2023 are struck out
- 2.The second application dated 23rd March 2023 is disallowed
- 3.Costs of the first and second applications to the 1st and 2nd respondents
- Jurisdiction invoked
- Environment and Land Court Act, 2015 (section 3) and Civil Procedure Act (Cap 21), sections 79G, 1A, 1B, 3 and 3A
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Family Bank Kenya Limited v Omanga (Suing as the Personal Legal Representative of the Estate of Margret Adhiambo Omanga - Deceased) & 3 others (Environment and Land Appeal E021 of 2022) [2024] KEELC 1341 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1341/eng@2024-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.