NAIROBI, Kenya, July 10 – Harambee Sacco has suffered a setback after the Court of Appeal declined to extend time for it to pursue an appeal in a long-running land dispute, leaving in place orders requiring it to transfer three Nairobi properties to Toshike Construction Company.
In a ruling delivered on July 3, Justice A.O. Muchelule held that although the intended appeal raised legitimate legal questions, the Sacco failed to satisfactorily explain a delay of nearly four years in pursuing the matter.
The decision upholds an earlier judgment by the Environment and Land Court (ELC) ordering specific performance of a 2006 sale agreement involving three maisonettes on Nairobi’s L.R. No. 209/7546.
Harambee Sacco argued that its record of appeal had been filed only one day late due to technical difficulties with the Judiciary’s electronic filing system, contending that the delay was minimal and beyond its control.
However, Toshike Construction opposed the application, arguing that the delay extended well beyond a single day and that the Sacco had failed to account for the prolonged inactivity following the ELC judgment delivered in December 2021.
Justice Muchelule found that while the alleged e-filing challenges may have explained the brief delay in August 2022, they did not account for the period leading up to the filing of the application for extension of time in April 2026.
“The intended appeal raises bona fide issues concerning the interpretation and enforcement of the sale agreement and the order of specific performance.”
“However, arguability alone is not sufficient where the delay is substantial and not adequately explained.”
The judge noted that courts consider several factors when deciding whether to extend time, including the length of the delay, the reasons given, the merits of the intended appeal and any prejudice likely to be suffered by the opposing party.
Although the court accepted that the proposed appeal was not frivolous, it held that the approximately 46-month delay was excessive and had not been adequately explained.
The dispute dates back to a 2006 sale agreement under which Toshike Construction sought transfer of three subdivided freehold titles after paying the agreed deposit and taking possession of the properties.
The Environment and Land Court found that the agreement was valid and enforceable, rejecting Harambee Sacco’s argument that it had intended to sell only the maisonettes and not the underlying land.
The court subsequently ordered specific performance of the agreement and dismissed the Sacco’s counterclaim, orders that now remain in force following the dismissal of the application to revive the appeal.
