Omollo v Odoyo (Environment and Land Miscellaneous Application E004 of 2023) [2024] KEELC 5893 (KLR)
The bottom line
#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 established good and substantial reasons for grant of leave to appeal out of time
- 2.Whether the applicant's prayer for stay of execution pending appeal is merited
- 3.Who should bear the costs of the application
Key legal issues
#Whether the five-month delay in filing the intended appeal was excusable
The delay was inexcusable; counsel's hospital admission ended on the day of judgment, so it did not explain the subsequent delay
The discharge summary showed counsel was discharged on 5th October 2022, the very day judgment was delivered, yet the application was only lodged on 13th March 2023. The court found no reasonable and acceptable explanation for the delay and held the application to be an afterthought.
Whether stay of execution pending the intended appeal should issue
No stay could issue where the decree had been partially satisfied and the delay unexplained
The respondent showed the decretal sum of Kshs. 171,766/- was partly satisfied through attachment and sale of the applicant's movable assets, leaving a balance of Kshs. 133,516/-. Partial satisfaction together with an inexcusable delay meant the discretionary test for extension of time and stay was not met.
Legal principles established
#- An application 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, balancing the parties' competing interests
- Without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, condonation should be refused
Court orders
#- 1.The Notice of motion dated 7th March 2023 is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Ndhiwa
- ELC No. 69 of 2018
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act, Chapter 21 Laws of Kenya
Relief refused
#Leave to appeal out of time against the judgment of 5th October 2022 in ELC No. 69 of 2018
A reasonable and acceptable explanation for the delay of more than five months was not advanced; the application is an afterthought
Stay of execution of the trial court's judgment pending the intended appeal
The decree has been partially satisfied and the delay is inexcusable; the application fails the test for exercise of discretion
Deeming of the annexed memorandum of appeal as duly filed and served
Fell with the dismissed application as the extension of time was refused
Costs
Application dismissed with costs to the respondent.
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.
Accordingly, the application by way of a Notice of motion dated 7th March 2023, be and is hereby dismissed with costs to the respondent.
I find and hold that the decree has been partially satisfied and that the delay in mounting this application is inexcusable and has not been satisfactorily explained.
Excusable delays are delays that are unforeseeable and beyond the control of the party. Non- excusable delays are delays that are foreseeable or within the party's control
Issues in the judgment
#The respondent is not named in the judgment; the parties are identified only as 'the applicant' and 'the respondent'
The applicant's counsel did not file submissions despite the court directing the application be heard by written submissions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omollo v Odoyo (Environment and Land Miscellaneous Application E004 of 2023) [2024] KEELC 5893 (KLR)", Case Analysis (2024). ELC Appeal (Notice of Motion dated 7th March 2023), Homa Bay. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5893/eng@2024-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.