Odus v Odus (Environment & Land Miscellaneous Case E003 of 2023) [2024] KEELC 4665 (KLR)
The bottom line
#The Environment and Land Court in Siaya refused a Kenyan man permission to appeal 20 months late because he could not explain the delay with evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant justified the ~1 year 7 month delay in seeking leave to appeal out of time
The delay was not satisfactorily explained; both grounds advanced (criminal investigations and filing in the wrong court) failed
The alleged criminal investigations at Usenge Police Station were not substantiated by any evidence beyond the applicant's assertions, and their nexus to the intended appeal was unclear. The earlier appeal in Siaya HCCA No. E004 of 2022 was struck out because the applicant failed to attend despite notices, so he squandered opportunities and was not candid with the court. The West Kenya Sugar case was distinguished because that applicant acted within 2 months.
Whether the intended appeal is arguable
The court was not satisfied the appeal was arguable because the impugned interlocutory decision had been overtaken by events
The decision the applicant sought to appeal emanated from an interlocutory application dated 13/12/2021, but a substantial judgment was subsequently rendered by the lower court on 3/02/2022, rendering the interlocutory ruling moot for appeal purposes.
Legal principles established
#- Extension of time is an equitable remedy, not a right, granted at the court's discretion to a deserving party who carries the burden of explaining the delay
- A litigant cannot shift blame for delay onto counsel; the case belongs to the litigant who must follow up
Court orders
#- 1.Dismissal of the notice of motion dated 17/10/2023
- 2.Each party to bear their respective costs
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act; Section 3 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odus v Odus (Environment & Land Miscellaneous Case E003 of 2023) [2024] KEELC 4665 (KLR)", Case Analysis (2024). ELC (Appeal) at Siaya, Notice of Motion dated 17/10/2023 (arising from Bondo ELC No. 13 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4665/eng@2024-06-13
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