Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 29th September 2023 (Homa Bay ELC)· [2024] KEELC 1763 (KLR)

Ober v Jaimbo (Environment and Land Miscellaneous Application E007 of 2023) [2024] KEELC 1763 (KLR)

Environment and Land Court
9 April 2024
995 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

The Homa Bay Environment and Land Court dismissed a bid to appeal three and a half years late because the delay was never explained.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Homa Bay (G.M.A. Ong'ondo, J) on a Notice of Motion dated 29th September 2023 by the applicant, appearing in person, seeking leave to file an appeal out of time against the judgment of Hon. E.M. Onsere (Principal Magistrate) in Ndhiwa Law Courts ELC No. 8 of 2019, delivered on 19th February 2020, with costs to the respondent. The applicant complained that the trial court did not specify a timeline for appeal and that he did not obtain proceedings and judgment in time. The respondent, also in person, opposed the application in a replying affidavit, describing it as misconceived, frivolous and vexatious, and deposing that the applicant had been evicted from the suit land, Kanyamwa/Kajwang/Kachola/Kadwet/772, which is now registered in the respondent's name as evidenced by the decree and an official search. The respondent further asserted the application was an attempt to mislead the court regarding the disputed parcel. The applicant's submissions reiterated his claim of ownership of parcel 2437 and his assertion that the eviction order was never served. The court identified a single issue: whether good and sufficient cause was established. Relying on section 79G of the Civil Procedure Act, Order 50 of the Civil Procedure Rules, and the extension-of-time principles in County Executive of Kisumu and Salat, the court found an unexplained delay of approximately three years seven months and ten days, noted the maxim that equity aids the vigilant and not the indolent, and found the application overtaken by events. The application was dismissed with costs to the respondent.

Key legal issues

#
01

Whether good and sufficient cause was shown for filing an appeal out of time under section 79G of the Civil Procedure Act

Holding

No good and sufficient cause was shown; the delay of over three and a half years was unexplained and the application was overtaken by events.

Reasoning

Section 79G allows admission of appeals out of time only upon good and sufficient cause. The applicant blamed the trial court for not specifying appeal timelines and alleged late receipt of proceedings, but failed to attach the proceedings or proof of late receipt. The delay of three years, seven months and ten days was not plausibly explained, and equity aids the vigilant, not the indolent.

p. 2
02

Whether the application was overtaken by events

Holding

Yes. The respondent demonstrated by decree and official search that the disputed property is now registered in his name.

Reasoning

The respondent annexed the decree issued on 19th February 2020 and a certificate of official search showing the suit land, Kanyamwa/Kajwang/Kachola/Kadwet/772, is registered in his name, and that the applicant had been evicted. Granting leave would therefore serve no practical purpose.

p. 3

Legal principles established

#
  • In an application for extension of time, the whole period of delay must be declared and satisfactorily explained to the court
  • Unexplained delay, even of a single day, justifies dismissal of an application

Court orders

#
  1. 1.The application dated 29th September 2023 was dismissed with costs to the respondent

Authorities

#

Legislation

  • Civil Procedure ActSection 75
  • Civil Procedure ActSection 79G
  • Civil Procedure Rules, 2010Order 50
  • Constitution of Kenya, 2010Article 10(2)(b)
  • Land Disputes Tribunal Act No. 18 of 1990

Cases cited (3)

  • County Executive of Kisumu vs County Government of Kisumu & 8 others
    (2017) eKLR
  • Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others
    (2014) eKLR
  • Raphael Musila Mutiso & 3 others vs Joseph Ndava Nthuka and another
    (2019) eKLR
Jurisdiction invoked
Inherent jurisdiction to extend time under section 79G of the Civil Procedure Act (Cap 21) - application for leave to file an appeal out of time

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ober v Jaimbo (Environment and Land Miscellaneous Application E007 of 2023) [2024] KEELC 1763 (KLR)", Case Analysis (2024). Notice of Motion dated 29th September 2023 (Homa Bay ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1763/eng@2024-04-09

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