Harambee Sacco loses bid to revive appeal in Nairobi land dispute

Harambee Sacco has suffered a legal setback after the Court of Appeal declined to extend the time for the Sacco to pursue an appeal in a long-running land dispute, leaving intact orders requiring it to transfer three Nairobi properties to Toshike Construction Company.

In a ruling delivered on July 3, Court of Appeal Judge A.O. Muchelule held that although the intended appeal raised legitimate legal issues, the Sacco had failed to provide a satisfactory explanation for a delay of nearly four years in seeking to revive the case.

The decision leaves in force an earlier judgment by the Environment and Land Court (ELC), which ordered Harambee Sacco to honour a 2006 sale agreement involving three maisonettes on L.R. No. 209/7546 in Nairobi through an order of specific performance.

Harambee Sacco had argued that its record of appeal was filed one day late because of technical challenges with the Judiciary’s electronic filing system, maintaining that the delay was minor and beyond its control.

However, Toshike Construction opposed the application, arguing that the delay extended far beyond a single day and that the Sacco had failed to explain the prolonged period of inactivity following the Environment and Land Court judgment delivered in December 2021.

Justice Muchelule found that while the alleged technical challenges could explain the brief delay experienced in August 2022, they did not justify the nearly four-year period before the Sacco filed its 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,” the judge said.

“However, arguability alone is not sufficient where the delay is substantial and not adequately explained,” he added.

The judge noted that courts consider several factors when determining whether to extend time, including the length of the delay, the reasons provided, the merits of the intended appeal and the prejudice that may be suffered by the opposing party.

Although the court accepted that the proposed appeal was not frivolous, it ruled that the approximately 46-month delay was excessive and had not been sufficiently explained.

The dispute dates back to a 2006 sale agreement under which Toshike Construction sought the transfer of three subdivided freehold titles after paying the agreed deposit and taking possession of the properties.

The Environment and Land Court previously 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 the Sacco to complete the transfer of the properties and dismissed its counterclaim.