Kibetu v Kibetu (Environment and Land Miscellaneous Application E011 of 2024) [2024] KEELC 7105 (KLR)
The bottom line
#The High Court refused to excuse a seven-month delay in filing an appeal because the applicant blamed his lawyer and offered no draft appeal papers.
What this practically means
#Executive summary
#Key legal issues
#Period of and reason for delay in filing the appeal
Delay of slightly over seven months was inordinate and the reasons (advocate's failure and financial constraints) were not plausible or credible
Judgment was delivered on 30th November 2023 and the application filed 10th July 2024, over seven months later. Blame placed on the previous advocate was rejected because the suit belonged to the applicant who ought to have followed it up himself. The financial constraint claim was dispelled by unchallenged evidence that the applicant collects rental income from the deceased's properties.
Arguability of the intended appeal
Not established because no draft Memorandum of Appeal was exhibited
An arguable appeal need not succeed but must not be frivolous. Without a draft Memorandum of Appeal the court cannot interrogate whether the intended appeal is frivolous. The applicant only asserted the trial court's finding that the respondent was not holding the land in trust for him.
Prejudice to the respondent
Implicitly weighed against the applicant, who failed to discharge his burden under Section 79G
The respondent deponed that the application was an afterthought meant to deny her the fruits of the judgment, that the property is registered in her name and she holds it in trust for her late son's minor child, and that the applicant was already given his share which he sold. On the totality, the applicant failed to meet the prerequisites for relief under Section 79G.
Legal principles established
#- Extension of time is an equitable remedy available only to a deserving party at the court's discretion; the applicant bears the burden of explaining the delay and showing absence of prejudice
- In the absence of a draft Memorandum of Appeal, the court cannot determine whether an intended appeal is arguable
Court orders
#- 1.The Notice of Motion dated 10th July, 2024 is dismissed with costs to the respondent
- 2.Leave to file the appeal out of time is declined
- 3.Prayer for stay of execution fails as it was anchored on the leave to appeal out of time
- On appeal from
- Marimanti Principal Magistrate's Court (PM ELC)
- Marimanti PM ELC E011 of 2020
- Jurisdiction invoked
- Sections 1, 1A, 3A and 79G of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibetu v Kibetu (Environment and Land Miscellaneous Application E011 of 2024) [2024] KEELC 7105 (KLR)", Case Analysis (2024). Notice of Motion dated 10th July, 2024 (High Court, Chuka). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7105/eng@2024-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.