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ELCDismissedNot stated in judgment (arising from Butali MCELC No 175 of 2018)· [2024] KEELC 3858 (KLR)
WERE WANAKACHA v TOM SHANGO WANAKACHA & another
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#What this practically means
#Executive summary
#By Notice of Motion dated 22nd May 2023, the applicant sought leave to appeal out of time against a judgment of the Senior Principal Magistrate's Court at Butali (Hon Z J Nyakundi, SPM) delivered on 28th March 2022 in Butali MCELC No 175 of 2018, and a stay of execution pending the intended appeal. He deposed that opposing counsel did not inform him of the judgment date and that he only learnt of it from new counsel on 4th October 2022. The respondents opposed through grounds of opposition, alleging laches, material non-disclosure, and an inordinate delay of one year and two months. In submissions, the applicant relied on the Salat case, arguing the failure to attend was inadvertent and excusable; the respondents relied on Evans Kiptoo, arguing that no appeal had been filed and the application was an abuse of process. Ohungo J set out the applicable period under Section 16A(1) of the Environment and Land Court Act - 30 days - and noted the application was filed on 26th May 2023, some one year and two months late. Applying the Salat principles under Section 16A(2), the court held that the applicant had not explained why he or his advocate missed the judgment date, nor the further eight-month delay between learning of the judgment and filing the application. The court found the applicant had failed to lay a satisfactory basis for the exercise of discretion and dismissed the motion with costs to the respondents.
Key legal issues
#01
Whether the applicant made out a case for extension of time to file an appeal out of time
Holding
The application was dismissed because the delay of one year and two months was inordinate and unexplained, particularly the eight-month gap after the applicant learnt of the judgment
Reasoning
The court applied the Salat principles. The applicant blamed his former advocate for not informing him of the judgment date but did not explain why he or his advocate failed to attend court, nor why he waited almost eight months after learning of the judgment on 4th October 2022 before filing the application on 26th May 2023.
p. 2
Legal principles established
#- An appeal from the subordinate court to the Environment and Land Court must be filed within 30 days of delivery of the judgment or ruling
- The court may admit an appeal out of time only where the appellant satisfies the court that there was good and sufficient cause for not filing in time
- Extension of time is an equitable remedy available only to a deserving party, and the applicant bears the burden of explaining the delay to the satisfaction of the court
Court orders
#- 1.Notice of Motion dated 22nd May 2023 dismissed with costs to the respondents
- On appeal from
- Senior Principal Magistrate's Court at Butali
- Butali MCELC No 175 of 2018
- Jurisdiction invoked
- Section 16A (2) of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "WERE WANAKACHA v TOM SHANGO WANAKACHA & another", Case Analysis (2024). Not stated in judgment (arising from Butali MCELC No 175 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3858/eng@2024-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.