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ELCDismissedELC (Appeal) at Siaya, Notice of Motion dated 17/10/2023 (arising from Bondo ELC No. 13 of 2020)· [2024] KEELC 4665 (KLR)

Odus v Odus (Environment & Land Miscellaneous Case E003 of 2023) [2024] KEELC 4665 (KLR)

Environment and Land Court
13 June 2024
2,180 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicant, Martin Ohayo Odus, moved the Environment and Land Court at Siaya by notice of motion dated 17/10/2023 seeking leave to appeal out of time against a ruling of 28/01/2022 in Bondo ELC No. 13 of 2020, deeming of his memorandum of appeal as properly filed, and costs. He explained a delay of about one year and seven months on two grounds: ongoing criminal investigations at Usenge Police Station over demolition of his house on the suit property, and the earlier misfiling of an appeal in Siaya HCCA No. E004 of 2022, which Aburili J struck out on 14/03/2022 for want of jurisdiction after the applicant failed to attend court. The respondent opposed, citing the applicant's indolence. The court, applying the Supreme Court's extension-of-time principles in NGO Coordination Board v EG & 5 others and Salat, together with Sections 79G and 95 of the Civil Procedure Act, held that the criminal investigations were unsubstantiated and had no nexus to the appeal, that the prior wrong-court appeal was struck out because the applicant squandered opportunities to appear, and distinguished West Kenya Sugar where the applicant acted within two months. The court also found the intended appeal unarguable since the impugned interlocutory ruling had been overtaken by a substantial judgment of 3/02/2022. The court dismissed the motion, noting that submissions are not evidence, and ordered each party to bear their own costs as the parties are siblings.

Key legal issues

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01

Whether the applicant justified the ~1 year 7 month delay in seeking leave to appeal out of time

Holding

The delay was not satisfactorily explained; both grounds advanced (criminal investigations and filing in the wrong court) failed

Reasoning

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.

p. 4
02

Whether the intended appeal is arguable

Holding

The court was not satisfied the appeal was arguable because the impugned interlocutory decision had been overtaken by events

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Dismissal of the notice of motion dated 17/10/2023
  2. 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

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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, "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

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