Odundo v Mainya (Environment and Land Miscellaneous Application E009 of 2024) [2024] KEELC 6391 (KLR)
The bottom line
#The High Court refused to let a litigant appeal nine months late, ruling that blaming an idle advocate doesn't excuse inordinate delay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Has the applicant established his case for grant of the orders sought, namely enlargement of time to file an appeal and a certificate of delay?
- 2.Is the delay of nearly 9 months in lodging the intended appeal excusable?
Key legal issues
#Whether the delay in filing the appeal should be extended on grounds of a mistake of counsel
The delay was inordinate and inexcusable; mere inaction by counsel cannot excuse it
The court applied the Salat guidelines and the principles in Njoroge v Kimani, holding that without a reasonable and acceptable explanation for the delay the prospects of success are immaterial. The trial judgment was delivered on 23rd August 2023 but the application was only lodged on 18th May 2024, nearly 9 months later. Citing Rajesh Rughani, Dilpack and Duale Mary Ann Gurre, the court held the litigant must follow up his case, and pure inaction by counsel is not a mistake that should not be visited on the client.
Whether the decree had been satisfied
The court found the decree had been partially satisfied
In dismissing the application the court noted that the decree had been partially satisfied, which weighed against extending time to appeal. The applicant had been committed to civil jail in execution of the decree of Kshs. 500,000 issued by the trial court on 23rd August 2023.
Legal principles established
#- Extension of time is not a right but an equitable remedy available to a deserving party at the discretion of the court, and the applicant bears the burden of explaining the delay
- A litigant has a duty to follow up on his case after instructing an advocate; mere inaction by counsel is not excusable and may be visited on the client
Court orders
#- 1.The application by way of a Notice of Motion dated 17th May 2024 is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Mbita Principal Magistrate's Court
- Environment and Land Case No. 3 of 2024
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Order 22 Rule 52 of the Civil Procedure Rules, 2010; Section 79G and Section 75 of the Civil Procedure Act
Relief refused
#Enlargement of time to file the appeal and issuance of a certificate of delay out of time
The delay of nearly 9 months was inordinate and no reasonable and acceptable explanation was advanced; blame of counsel was inaction not excusable
Bond pending appeal
Not granted as the application failed; respondent alleged the applicant had unlawfully left custody
Costs
The application is 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 17th May 2024, 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.
without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused
inaction on the part of an advocate as opposed to error of judgement or a slip is not excusable
Issues in the judgment
#Chronology contradiction: the judgment states the applicant was sued in Mbita PMCC ELC No. 3 of 2024 yet the trial court's judgment was delivered on 23rd August 2023, before the stated year of the case number
The court finds the decree 'partially satisfied' without any preceding analysis or evidence discussion of partial satisfaction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odundo v Mainya (Environment and Land Miscellaneous Application E009 of 2024) [2024] KEELC 6391 (KLR)", Case Analysis (2024). Notice of Motion dated 17th May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6391/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.