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ELCDismissedELC Appeal (Notice of Motion dated 7th March 2023), Homa Bay· [2024] KEELC 5893 (KLR)

Omollo v Odoyo (Environment and Land Miscellaneous Application E004 of 2023) [2024] KEELC 5893 (KLR)

Environment and Land Court
17 September 2024
GOG.M.A Ongondo
1,280 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Homa Bay (G.M.A Ongondo, J) determined a Notice of motion dated 7th March 2023 by Pancreas Nyaidho Omollo, seeking leave to appeal out of time against the judgment of Hon. E. Onzere (Principal Magistrate) delivered on 5th October 2022 in Ndhiwa ELC No. 69 of 2018, a stay of execution of that judgment pending the intended appeal, and deeming of the annexed memorandum of appeal as duly filed and served. The application was brought under Sections 79G and 95 of the Civil Procedure Act. The applicant attributed the delay of more than five months to the illness and hospital admission of his counsel, Jacob Omwenga. The respondent, who filed no replying affidavit but filed submissions dated 12th June 2024, opposed the application, noting that the decretal sum of Kshs. 171,766/- had been partly satisfied through attachment and sale of the applicant's movable assets, leaving a balance of Kshs. 133,516/-, and that the applicant had been committed and recommitted to jail. The court applied the Salat criteria for extension of time and the excusable-delay principles in Njoroge v Kimani. It observed that counsel was discharged from Nyangena Hospital on 5th October 2022, the same day judgment was delivered, so the illness could not explain the subsequent delay. Holding that no reasonable and acceptable explanation had been advanced, that the decree had been partially satisfied, and that the application was an afterthought, the court dismissed the application with costs to the respondent.

Key legal issues

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01

Whether the five-month delay in filing the intended appeal was excusable

Holding

The delay was inexcusable; counsel's hospital admission ended on the day of judgment, so it did not explain the subsequent delay

Reasoning

The discharge summary showed counsel was discharged on 5th October 2022, the very day judgment was delivered, yet the application was only lodged on 13th March 2023. The court found no reasonable and acceptable explanation for the delay and held the application to be an afterthought.

p. 3
02

Whether stay of execution pending the intended appeal should issue

Holding

No stay could issue where the decree had been partially satisfied and the delay unexplained

Reasoning

The respondent showed the decretal sum of Kshs. 171,766/- was partly satisfied through attachment and sale of the applicant's movable assets, leaving a balance of Kshs. 133,516/-. Partial satisfaction together with an inexcusable delay meant the discretionary test for extension of time and stay was not met.

p. 3

Legal principles established

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  • An application for extension of time must show good and substantial reasons for the delay and prima facie good cause why the intended appeal should be heard, balancing the parties' competing interests
  • Without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, condonation should be refused

Court orders

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  1. 1.The Notice of motion dated 7th March 2023 is dismissed with costs to the respondent
On appeal from
Principal Magistrate's Court, Ndhiwa
ELC No. 69 of 2018
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act, Chapter 21 Laws of Kenya

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, "Omollo v Odoyo (Environment and Land Miscellaneous Application E004 of 2023) [2024] KEELC 5893 (KLR)", Case Analysis (2024). ELC Appeal (Notice of Motion dated 7th March 2023), Homa Bay. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5893/eng@2024-09-17

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