Odongo v Makoyoko (Enviromental and Land Originating Summons 65 of 2018) [2025] KEELC 5091 (KLR)
The bottom line
#A Kenyan court refused to let an applicant appeal nearly three years late, ruling that unexplained delay and unsupported claims don't justify extending appeal deadlines.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant was entitled to leave to appeal out of time under Section 79G of the Civil Procedure Act
The application failed: the delay of about three years was inordinate and unexplained, no evidence supported the claim that the file went missing, and prejudice would be occasioned to the Respondent if leave was granted
The court applied Section 79G of the Civil Procedure Act and the Salat criteria from the Supreme Court. The judgment was delivered on 22/11/2022 and the application was filed about three years later. The explanations - advanced age, living alone, and a missing file - were unsupported by evidence and internally inconsistent. The Respondent, as the successful party, would be prejudiced by being denied the fruits of his judgment.
Whether the Respondent would suffer prejudice if extension of time was granted
The court held that prejudice would be occasioned because the Respondent was executing the decree and the Applicant was seeking to frustrate those efforts
The Respondent was the successful party in a judgment against which no timely appeal was preferred and no early extension was sought. What awakened the Applicant was the execution of the decree. It was therefore fair to allow the Respondent to enjoy the fruits of his judgment rather than grant leave that would defeat them.
Legal principles established
#- Extension of time is not a right of a party; it is an equitable remedy available to a deserving party at the discretion of the Court, and the applicant bears the burden of explaining the delay to the satisfaction of the court
- Delay, however small, goes to the substance of the matter and must be reasonably explained to the satisfaction of the court
Court orders
#- 1.The Notice of Motion Application dated December 18, 2024 is dismissed entirely with costs to the Respondent
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act; Order 42 Rule 6(4) Civil Procedure Rules; Rule 4 and Rule 77(1) and (2) of the Appellate Jurisdiction Act (Court of Appeal) Rules, Legal Notice No. 20 of 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odongo v Makoyoko (Enviromental and Land Originating Summons 65 of 2018) [2025] KEELC 5091 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5091/eng@2025-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.