Ogola & another v Aketch
The bottom line
#Kenya's Environment and Land Court reinstated a land appeal dismissed for a year of delay, but made the appellants pay costs and gave them just 14 days to file.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellants have demonstrated reasonable grounds for the reinstatement of their appeal
- 2.Whether the appellants will suffer prejudice if the appeal is not reinstated
- 3.Whether the delay in filing the record of appeal was prolonged, inexcusable, and whether justice can nonetheless be done despite the delay
Key legal issues
#Whether the delay in filing the record of appeal was prolonged and inexcusable
The delay exceeded one year and was prolonged; the explanation of miscommunication was unsupported by evidence, so the delay was inexcusable and the dismissal was sound and justifiable
The court found delay exceeding one year from filing the memorandum of appeal, which was plainly prolonged. Counsel's claim of miscommunication with clients was not supported by correspondence or other evidence. The court held that mere averments devoid of supporting evidence are insufficient, concluding the appellants failed to adequately explain the delay and the dismissal order was sound.
Whether the appeal should nonetheless be reinstated in the interest of substantive justice
Yes - despite prolonged and unjustifiable delay, the appeal was reinstated because it was arguable and the respondent failed to demonstrate prejudice
Applying Ivita v Kyumbu, the court asked whether justice could be done despite the delay. It noted the appeal raised eight grounds, the main one being lack of jurisdiction of the trial court, making it arguable. The court was conscious of the appellants' access-to-justice and fair-hearing rights under Articles 48, 50(1) and 25(c), and found the respondent had not sufficiently demonstrated prejudice if the appeal were reinstated for inter partes hearing.
Whether the court could enlarge time although extension was not expressly sought
Yes - reinstatement of the appeal has the same effect as extension of time under Section 95 of the Civil Procedure Act
The court noted that reinstatement is discretionary and handled case by case. Section 95 of the Civil Procedure Act permits enlargement of time even after expiry of the fixed period. Although the applicants did not expressly seek extension of time, the court reasoned that reinstating the appeal would achieve the same effect as extending the time to file the record of appeal.
Legal principles established
#- The test for reinstatement of a suit dismissed for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can be done despite the delay, with prejudice to be demonstrated
- Mere averments without supporting evidence are insufficient to explain delay
- An order reinstating an appeal has the same effect as an order extending time within which to file the record of appeal
Court orders
#- 1.The appellants' application dated 10th March 2023 is allowed in terms of prayer numbers 1, 2 and 3
- 2.The order of 7th February 2023 dismissing the appeal is reviewed/set aside and the appeal filed on 30th September 2022 is reinstated
- 3.The appellants to file and serve their Record of Appeal within fourteen (14) days from the date of the order, failing which the appeal will stand dismissed
- 4.The matter to be heard and dispensed with on a sooner date
- 5.Costs of the application to be borne by the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya and Order 12 Rule 7(2) of the Civil Procedure Rules, 2010
Relief refused
#Costs of the application
Costs awarded against the applicants, not in their favour
Costs
The costs of this application to be borne by the appellants.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
So the test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay
It is not enough to make mere averments devoid of supporting evidence.
Although the appellants have not expressly sought for extension of time, an order reinstating the appeal would be of the same effect as an order extending the time within which they were required to file the record of appeal.
Accordingly, the appellants' application dated 10th March 2023 is hereby allowed in terms of prayer numbers 1, 2 and 3 and the appeal is hereby reinstated.
The Appellants are directed to file and serve their Record of Appeal within fourteen (14) days from the date of this order, failure to which the appeal will stand dismissed.
Issues in the judgment
#Date of filing of appeal inconsistently stated
Date of admission of appeal conflicts between respondent's affidavit and court record
Court finds dismissal justifiable yet reinstates the appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogola & another v Aketch", Case Analysis (2023). Environment and Land Appeal E004 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21648/eng@2023-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.