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Court of AppealDismissedNot stated on the face of the ruling (arising from ELC No. 98 of 2010)· [2024] KECA 330 (KLR)

Walter Namasake & 65 Others v Abdi Sheikh Ahmed & 3 others

Court of Appeal of Kenya
28 March 2024
PKP. O. Kiage
1,505 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to forgive a four-month appeal delay because the excuses offered happened after the deadline had already passed.

What this practically means

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Executive summary

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This is a single-judge in-chambers ruling of the Court of Appeal at Nairobi by Kiage, JA, delivered on 28th March 2024, on a Notice of Motion dated 27th April 2023 seeking extension of time to file and serve a notice of appeal, a consequential stay of proceedings in the High Court, and certification of the matter as one of general public importance. The intended appeal challenges the judgment in ELC No. 98 of 2010 delivered on 8th December 2022. The applicants, whose notice of appeal was lodged only in February 2023 after rejected attempts, blamed a mistaken belief that 30 rather than 14 days applied, a burglary at their advocates' offices, and counsel's illness. The 1st respondent countered that the burglary and illness occurred well after the 14-day period expired, while the 2nd to 4th respondents additionally challenged the competency of the application and the draft notice of appeal. The judge applied the Supreme Court's parameters in the Salat case, holding that extension of time is an equitable remedy available only to a deserving party who explains the delay to the court's satisfaction. Finding the proffered explanations post-dated the delay and that counsel's ignorance of the applicable time limit was inexcusable, and distinguishing Nancy Wanjiru Mwaura, the court declined the extension and dismissed the application with costs. The other prayers fell away as the court had indicated only the extension prayer was properly before it.

Key legal issues

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01

Sufficiency of explanation for delay in filing notice of appeal

Holding

Extension refused where the explanations offered (theft and counsel's illness) occurred after the 14-day period had already lapsed and no follow-up on the appeal's status was shown

Reasoning

The decision was delivered on 8th December 2022, so the 14-day period expired in mid-January 2023. The police abstract showed theft on 21st February 2023 and sick-off forms ran from March 2023 - both postdating the delay. The claim that counsel believed 30 days applied was rejected because legal practitioners are presumed to know the law. Unlike Nancy Wanjiru Mwaura, the applicants did not show they had pursued the matter diligently with misleading advocates.

p. 3

Legal principles established

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  • Extension of time is an equitable discretionary remedy, not a right, guided by the Salat parameters: the applicant bears the burden of explaining the delay to the court's satisfaction, considering prejudice, undue delay in bringing the application and public interest.
  • Counsel are presumed to know the law and procedure; a mistaken belief that 30 rather than 14 days applied is not a sufficient reason for delay, and events occurring after the delay period (burglary, illness) cannot explain it.
  • Discretion to enlarge time must be exercised judicially on sound principle, not sympathy or caprice.

Court orders

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  1. 1.The prayer to extend time to file and serve the notice of appeal is declined
  2. 2.The application is dismissed with costs to the respondents
On appeal from
Environment and Land Court (High Court)
ELC No. 98 of 2010
Jurisdiction invoked
Discretion to extend time for filing and serving a notice of appeal under the Court's procedural rules (Rule not named in the judgment)

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, "Walter Namasake & 65 Others v Abdi Sheikh Ahmed & 3 others", Case Analysis (2024). Not stated on the face of the ruling (arising from ELC No. 98 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/330/eng@2024-03-28

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