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ELCStruck OutMotion dated 1/03/2021 (application for leave to appeal out of time) arising from Siaya PM ELC Case No. 33 of 2016· [2022] KEELC 130 (KLR)

Nawiri v Oundo (Environment & Land Miscellaneous Case E003 of 2022) [2022] KEELC 130 (KLR)

Environment and Land Court
5 May 2022
AKA. Y. Koross
1,217 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Siaya struck out an application to appeal late because sloppy drafting made it unclear who was actually appealing.

What this practically means

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Executive summary

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This was an application under Sections 3A, 79G and 95 of the Civil Procedure Act for leave to appeal out of time against the judgment and order of Hon. L. Simiyu in Siaya PM ELC Case No. 33 of 2016. The applicant attributed the delay to difficulties in obtaining certified copies of the judgment, proceedings and order, and to his previous advocate's delay in filing a consent allowing his current advocates to come on record, arguing the respondent would suffer no prejudice. The respondent, though served, filed neither a response nor submissions. The court, hearing the matter on its merits, first identified preliminary defects: the memorandum of appeal dated 19 January 2022 was improperly on record since leave to file it out of time had not been granted and it was expunged; the motion appeared dated before the trial court's determination; the date and copy of the impugned judgment were uncertain; and, most fatally, the motion named Michael Otieno Nawiri as proposed appellant while being supported by an affidavit of Fidelis Oduor Oundo claiming to be the proposed appellant. Holding that this uncertainty went to the root of the motion, and that extension of time is an equitable remedy available only to a deserving party, the court found the motion flawed and struck it out. Because the court could not determine who the proposed appellant was, it made no orders as to costs.

Key legal issues

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Whether leave to appeal out of time should be granted on the stated grounds of delay

Holding

The motion was struck out because of serious flaws, principally the uncertainty as to who the proposed appellant is, and the applicant's failure to demonstrate good and sufficient cause for the delay.

Reasoning

The court identified preliminary defects: the memorandum of appeal was filed before leave was granted and was expunged; the motion's date preceded the delivery of the judgment appealed from; the copy of the ruling/judgment was not availed and its date was uncertain; and, most fatally, the motion described Michael Otieno Nawiri as the proposed appellant while being supported by the affidavit of Fidelis Oduor Oundo, who claimed to be the proposed appellant. These defects went to the root of the motion. Extension of time being equitable and discretionary, the court found the applicant undeserving and struck out the motion, making no orders as to costs since it could not determine who the proposed appellant was.

p. 3

Legal principles established

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  • The principles for extending time are: length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent.
  • An applicant for extension of time must show good and sufficient cause for not filing in time under Section 79G.
  • Extension of time to appeal is an equitable remedy, not of right, and equity aids the vigilant, not the indolent.

Court orders

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  1. 1.The motion dated 19/10/2020 is hereby struck out with no orders as to costs.
On appeal from
Siaya Principal Magistrate's Court
ELC Case No. 33 of 2016
Jurisdiction invoked
Sections 3A, 79G and 95 of the Civil Procedure Act (as cited in the motion)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nawiri v Oundo (Environment & Land Miscellaneous Case E003 of 2022) [2022] KEELC 130 (KLR)", Case Analysis (2022). Motion dated 1/03/2021 (application for leave to appeal out of time) arising from Siaya PM ELC Case No. 33 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/130/eng@2022-05-05

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