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ELCAllowedNot stated in the judgment (arising from Maua CM ELC No. 158 of 2019)· [2025] KEELC 129 (KLR)

Birithia v M’Erugura & another (Environment and Land Miscellaneous Application E040 of 2024) [2025] KEELC 129 (KLR)

Environment and Land Court
23 January 2025
3,106 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Meru allowed a late appeal because a 10-day delay and money problems were accepted as good reason.

What this practically means

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Executive summary

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The applicant, Joseph Michubu Birithia, moved the Environment and Land Court at Meru by application dated 15.10.2024 seeking leave to file an appeal out of time against the judgment and decree of Hon. Felix Kombo, CM, delivered on 5 September 2024 in Maua CM ELC No. 158 of 2019, and further sought leave for the firm of M/s C.K Thiruaine & Company Advocates to act alongside M/s Maitai Rimita & Company Advocates. The respondent opposed the application as premature, misconceived and an abuse of process, contending that no cogent reason for the delay had been advanced and that the delay exceeded four months. The court framed two issues: whether the application was filed timeously, and whether sufficient cause had been established. Relying on the Salat principles and the Chemaringo decision, the court found that the application, filed only 10 days after the expiry of the 30-day period under Section 79G of the Civil Procedure Act, was lodged without inordinate delay. On the second issue, the court accepted the applicant's explanation of financial constraints, noting that the respondent had not controverted the deposition and that a liberal, access-to-justice-oriented approach under Articles 48 and 159(1) of the Constitution was appropriate. The application was allowed with leave to file and serve the memorandum of appeal within 7 days, failing which the leave would lapse. Despite allowing the application, the court awarded the respondent costs of the application certified at Kshs.15,000/=.

Key legal issues

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01

Whether the application for extension of time was filed without undue delay

Holding

The 10-day delay after expiry of the 30-day period under Section 79G was neither unreasonable nor inordinate.

Reasoning

The judgment sought to be appealed was delivered on 5.9.2024 and time expired on 5.10.2024. The application was filed 10 days later. Guided by Salat and Chemaringo, the court held that delay must be assessed on the circumstances; a 10-day delay was not inordinate, so the application was lodged with due promptitude.

p. 5
02

Whether financial constraints constituted sufficient cause for the delay

Holding

The applicant's financial constraints constituted sufficient cause, more so as they were not controverted by the respondent.

Reasoning

The applicant explained he could not give instructions due to financial incapacitation. Although no bank statement was produced, the court noted the general economic difficulties affecting citizens. The respondent neither challenged nor controverted the deposition, entitling the court to accept it, and a liberal approach promoting access to justice under Articles 48 and 159(1) was adopted.

p. 5

Legal principles established

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  • An application for extension of time must be brought without inordinate delay and the applicant must explain the duration of delay.
  • Financial constraints may constitute sufficient cause for extension of time depending on the circumstances.
  • Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps.

Court orders

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  1. 1.The application dated 15.10.2024 be and is hereby allowed
  2. 2.The applicant be and is hereby granted leave to file an appeal out of time and the memorandum of appeal shall be filed and served within 7 days from the date hereof
  3. 3.In default of filing and serving the memorandum of appeal in accordance with clause 2 hereof the leave granted shall automatically lapse
  4. 4.The respondent be and is hereby awarded costs of the application
  5. 5.The costs in terms of clause 4 be and are hereby certified in the sum of Kshs.15,000/=
On appeal from
Chief Magistrate's Court, Maua
Maua CM ELC No. 158 of 2019
Jurisdiction invoked
Inherent discretion to extend time under Section 79G of the Civil Procedure Act and Articles 48, 159(1) and 259(1) of the Constitution of Kenya, 2010

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, "Birithia v M’Erugura & another (Environment and Land Miscellaneous Application E040 of 2024) [2025] KEELC 129 (KLR)", Case Analysis (2025). Not stated in the judgment (arising from Maua CM ELC No. 158 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/129/eng@2025-01-23

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