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ELCAllowedApplication dated 9th June 2023 (in the intended appeal from Lamu PM-ELC Case No. 10 of 2020)· [2024] KEELC 3270 (KLR)

Diffin v Muhdhar (Miscellaneous Application E027 of 2023) [2024] KEELC 3270 (KLR)

Environment and Land Court
12 April 2024
EME. K. Makori
1,188 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Malindi let a woman file her land appeal 90 days late because the disputed land was undeveloped and no one would be harmed.

What this practically means

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Executive summary

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This was a Notice of Motion dated 9th June 2023 in which Hafswa Abdalla Said Diffin, the applicant, sought leave to file an appeal out of time against the judgment of Hon. Wachira SRM delivered on 17th March 2023 in Lamu PM-ELC Case No. 10 of 2020 (Abdalla Said Difin v Amina Muhdhar), or in the alternative, leave to appeal out of time, with costs in the intended appeal or in the cause. The respondent, Amina Muhudhar, opposed the application through a replying affidavit sworn on 14th July 2023, and the parties canvassed the motion by written submissions. The applicant attributed the roughly 90-day delay to her unsuccessful search for a new advocate other than the one who had represented her in the lower court, invoking Articles 50(2), 25(2), 48 and 159(2)(d) of the Constitution, sections 1A and 1B of the Civil Procedure Act, and case law on substantive justice and the factors governing extension of time. The respondent contended that the application was brought after the 45-day stay window had lapsed and that the delay was unexplained, contrary to the principles in the Salat and Thuita Mwangi decisions. E. K. Makori J applied the extension-of-time principles restated by the Supreme Court in Mombasa County Government v Kenya Ferry Services, holding that extension of time is an equitable, discretionary remedy and that the applicant's explanation was weak. However, because the disputed land remains undeveloped, the court found no prejudice to the respondent and allowed the application, granting leave to appeal out of time, deeming the lodged Memorandum of Appeal regular, and directing that directions be taken on the main appeal. There was no order as to costs.

Key legal issues

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Whether the 90-day delay in filing the intended appeal should be excused and leave to appeal out of time granted

Holding

The application was allowed. The applicant's explanation for the delay (searching for a new advocate) was weak, but the court found no prejudice to the respondent since the land in dispute is undeveloped, and exercised its discretion in favour of granting leave.

Reasoning

The court applied the Salat principles: extension of time is discretionary and equitable, and the applicant bears the burden of explaining the delay. It found the sole reason offered - time spent seeking new counsel before reverting to the former advocate - did not justify the delay. However, the court noted the suit property remains undeveloped, so the respondent would suffer no prejudice if the appeal proceeded; had prejudice been shown, the application would have failed. Balancing these factors, the discretion tilted towards allowing the application.

p. 3

Legal principles established

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  • Extension of time is an equitable remedy, not a right; a party must lay a basis and explain the delay, and the court weighs prejudice, undue delay and public interest on a case-to-case basis.

Court orders

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  1. 1.Leave is granted for the applicant to appeal out of time
  2. 2.The lodged Memorandum of Appeal is deemed regular
  3. 3.Directions be taken on the hearing and disposal of the main appeal itself
  4. 4.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(2)
  • Constitution of Kenya, 2010Article 25(2)
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure Act (cited as Civil Procedure Rules)Sections 1A and 1B

Cases cited (5)

  • Apollo Mboya v Attorney General and 2 Others
    [2018] eKLR
  • Charles N. Ngugi v ASL Credit Limited
    [2022] eKLR
  • Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
  • Thuita Mwangi v Kenya Airways Limited
    [2003] eKLR
  • Mombasa County Government v Kenya Ferry Services & another
    [2019] eKLR
On appeal from
Lamu Principal Magistrate's Court (Environment and Land)
PM-ELC Case No. 10 of 2020
Jurisdiction invoked
Inherent discretion to extend time under the Civil Procedure Act (sections 1A and 1B on the overriding objective) in an intended appeal from the magistrates' court

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, "Diffin v Muhdhar (Miscellaneous Application E027 of 2023) [2024] KEELC 3270 (KLR)", Case Analysis (2024). Application dated 9th June 2023 (in the intended appeal from Lamu PM-ELC Case No. 10 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3270/eng@2024-04-12

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