Achieng v Onyango (Environment and Land Miscellaneous Application E008 of 2023) [2024] KEELC 385 (KLR)
The bottom line
#A Kenyan court let a late appeal proceed because certified court proceedings were delayed, but refused to pause execution of the judgment that dismissed the suit.
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 applicant has proved the conditions set for grant of leave to file an appeal out of time
- 2.Whether the applicant has proved the conditions set for grant of orders of stay of execution
- 3.Who should bear the costs of the instant application
Key legal issues
#Extension of time to file an appeal out of time
Leave was granted despite absence of a certificate of delay, on the strength of Articles 48, 50(1) and 25(c) of the Constitution protecting the right of appeal
The court applied the Salat criteria for extension of time. Although judgment was delivered on 16 March 2022 and the proceedings were only supplied on 21 August 2023, the court held that the delay was occasioned by the delay in obtaining certified proceedings. Even without a certificate of delay, the court declined to deprive the applicant of his constitutional right of appeal.
Stay of execution of a judgment dismissing a suit
Stay was refused because the judgment was a negative order and the applicant failed to show substantial loss under Order 42 Rule 6(2)
Relying on the Pharmacy and Poisons Board decision, the court held that a negative order dismissing an application cannot be stayed. The judgment sought to be stayed dismissed the applicant's own suit with costs, and the applicant failed to advance sufficient and good reason for the grant of stay.
Effect of an unsigned supporting affidavit
The unsigned affidavit is fatally defective, yet the court exercised discretion given the unopposed application and constitutional right of access to justice
The court invoked the Konchellah decision holding that an unsigned affidavit is of no legal value and is deemed nonexistent. Nonetheless, noting the unopposed nature of the motion and the applicant's rights under Articles 48 and 50(1) read with Article 25(c), the court proceeded to grant the extension of time.
Legal principles established
#- An unsigned supporting affidavit is fatally defective and of no value, and is deemed as if no affidavit were on record
- An applicant for extension of time must show good and substantial reasons for the delay and prima facie good cause why the intended appeal should be heard
- A negative order dismissing a suit or application cannot be stayed
Court orders
#- 1.Leave granted to the intended appellant to file the record of appeal out of time (prayer 4)
- 2.The applicant's counsel to file and serve the record of appeal within thirty (30) days from the date of the order
- 3.Costs of the application to abide the prospective appeal
- 4.Prayer for stay of execution of the trial court's judgment declined
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Homa Bay Law Courts (Environment and Land Court)
- Environment and Land Case No. 32 of 2019
- Jurisdiction invoked
- Sections 3A, 79G and 95 of the Civil Procedure Act (Cap. 21) as read with Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Relief refused
#Stay of execution of the trial court's judgment of 16th March 2022 (prayer 5)
The judgment dismissed the applicant's suit with costs - a negative order incapable of being stayed - and the applicant failed to demonstrate substantial loss under Order 42 Rule 6(2)
Costs
Costs of the application to abide the prospective appeal.
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.
The upshot is that only prayer 4 sought in the application dated 4th October 2023 as set out in paragraph 1(d) hereinabove, is hereby granted accordingly. For clarity, prayer 5 for stay of execution of the trial court’s judgment is declined thereby.
The applicant’s counsel shall file the appeal and serve the record of appeal within thirty (30) days from this date.
Costs of the application to abide the prospective appeal.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court
…A negative order dismissing an application cannot be stayed…
Issues in the judgment
#The application was anchored on an unsigned supporting affidavit, which the court itself found defective
Annexure marking inconsistent within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Achieng v Onyango (Environment and Land Miscellaneous Application E008 of 2023) [2024] KEELC 385 (KLR)", Case Analysis (2024). Notice of Motion dated 4th October 2023 arising from Homa Bay ELC No. 32 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/385/eng@2024-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.