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ELCDismissedSiaya ELC Case (motion dated 2/11/2023)· [2024] KEELC 4384 (KLR)

Siengo v Ajwala (Environment and Land Miscellaneous Application 3 of 2023) [2024] KEELC 4384 (KLR)

Environment and Land Court
30 May 2024
AKA. Y. Koross
1,697 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Siaya dismissed a request to appeal two years late, warning that unexplained delays without solid evidence will cost you the case.

What this practically means

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Executive summary

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The applicant, acting in person, moved the Environment and Land Court at Siaya by notice of motion dated 2/11/2023 seeking leave and extension of time to appeal out of time against the decision in Siaya PM ELC Case no. 78 of 2018, a stay of execution of the decree, and costs. He explained the delay by claiming he had toiled to secure an advocate and that the National Legal Aid Service came to his aid on 23/10/2023, and further alleged that the respondent's son had set ablaze his maize plantation on the suit property, South Gem/Wagai/113, and threatened his life. The motion was unopposed but canvassed by written submissions, in which the respondent's counsel argued inordinate and unexplained delay and failure to furnish security, citing Njoroge v Kimani. The court framed three issues: extension of time, stay of execution, and disposal. Applying sections 79G and 95 of the Civil Procedure Act and the principles in Non-Governmental Organizations Coordination Board v EG & 5 others and Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court found the delay of over two years from the 5/11/2021 judgment inordinate, and the further nine-month delay after the prior application was dismissed on a technicality equally inordinate. It rejected the applicant's explanations as a smoke screen and afterthought, holding that the burden lay on him to demonstrate plausible and satisfactory reasons. Having failed on extension of time, the stay prayer fell away. The motion was dismissed with costs to the respondent on 30 May 2024.

Key legal issues

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01

Whether extension of time to appeal out of time should be granted

Holding

Refused; the delay of over two years was inordinate and unexplained, and the explanation regarding the National Legal Aid Service was unsupported and disbelieved

Reasoning

Judgment was delivered on 5/11/2021 and the motion filed on 7/11/2023, a delay of over two years. A prior application was struck out on a technicality on 2/02/2023 and the applicant took nine months to file the instant motion, also inordinate. The applicant, who acted in person, produced no evidence that the National Legal Aid Service drafted pleadings or that he engaged an advocate. Without a cogent explanation, the discretion under sections 79G and 95 of the Civil Procedure Act could not be exercised in his favour.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy available to a deserving party at the court's discretion, and the applicant bears the burden of explaining the delay to the court's satisfaction.

Court orders

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  1. 1.The notice of motion dated 2/11/2023 is hereby dismissed.
  2. 2.Costs are awarded to the respondent.
On appeal from
Siaya Principal Magistrate's Court (ELC)
Siaya PM ELC Case no. 78 of 2018
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act

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, "Siengo v Ajwala (Environment and Land Miscellaneous Application 3 of 2023) [2024] KEELC 4384 (KLR)", Case Analysis (2024). Siaya ELC Case (motion dated 2/11/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4384/eng@2024-05-30

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