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ELCDismissedNotice of Motion dated 10th July, 2024 (High Court, Chuka)· [2024] KEELC 7105 (KLR)

Kibetu v Kibetu (Environment and Land Miscellaneous Application E011 of 2024) [2024] KEELC 7105 (KLR)

High Court of Kenya
30 October 2024
1,887 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicant, Erick Gichangi Kibetu, moved the High Court at Chuka by Notice of Motion dated 10th July 2024 under Sections 1, 1A, 3A and 79G of the Civil Procedure Act, seeking leave to appeal out of time against the judgment of Hon. PM. Mbayaki Wafula in Marimanti PM ELC E011 of 2020 delivered on 30th November 2023, in which the trial court found that the respondent, his stepmother, was not holding land parcel Kathwana/1781 and its subdivisions in trust for him and his family. He also sought a stay of that decree pending the intended appeal. He blamed his previous advocate for lodging the request for proceedings late and cited financial constraints. The respondent opposed, contending the application was an afterthought, the delay of over six months inordinate, and that the applicant received rental income from the deceased's properties and had already received and sold his share. Citing the Salat decision of the Supreme Court, Justice C.K Yano applied the principles governing extension of time: length of and explanation for delay, arguability of the appeal, and prejudice. The court found the delay of slightly over seven months inordinate, the explanation that blame lay with the advocate not plausible since the suit belonged to the applicant, and the financial constraint claim dispelled by unchallenged evidence of rental income. No draft Memorandum of Appeal was exhibited, so arguability could not be assessed. The motion was dismissed with costs to the respondent, and the stay prayer fell with the refusal of leave.

Key legal issues

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01

Period of and reason for delay in filing the appeal

Holding

Delay of slightly over seven months was inordinate and the reasons (advocate's failure and financial constraints) were not plausible or credible

Reasoning

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.

p. 4
02

Arguability of the intended appeal

Holding

Not established because no draft Memorandum of Appeal was exhibited

Reasoning

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.

p. 4
03

Prejudice to the respondent

Holding

Implicitly weighed against the applicant, who failed to discharge his burden under Section 79G

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 10th July, 2024 is dismissed with costs to the respondent
  2. 2.Leave to file the appeal out of time is declined
  3. 3.Prayer for stay of execution fails as it was anchored on the leave to appeal out of time

Authorities

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Legislation

  • Civil Procedure ActSection 1
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 79G

Cases cited (1)

  • Nicholas Kiptoo Arap Korir Salat Vs. Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
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

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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, "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.