- Harambee Sacco had not satisfactorily explained why it sat on the matter for close to four years before moving to revive it
- The dispute dates back to 2006, when Toshike Construction paid a deposit and took possession of the properties on the understanding that it would eventually receive three subdivided freehold titles
- Harambee Sacco is bound to transfer the three subdivided freehold titles to Toshike Construction
Harambee Sacco has lost a bid to revive a stalled appeal in a long-running land dispute, after the Court of Appeal ruled that it took the Sacco far too long to challenge a judgment ordering it to hand over three Nairobi properties to Toshike Construction Company.
Justice A.O. Muchelule, in a ruling delivered on July 3, declined to extend time for the Sacco to pursue its appeal, finding that although the case raised genuine legal questions, Harambee Sacco had not satisfactorily explained why it sat on the matter for close to four years before moving to revive it.
The ruling leaves undisturbed a judgment by the Environment and Land Court (ELC) directing specific performance of a 2006 sale agreement covering three maisonettes built on L.R. No. 209/7546 in Nairobi, meaning the Sacco must now proceed to transfer the properties to Toshike Construction.
The dispute dates back to 2006, when Toshike Construction paid a deposit and took possession of the properties on the understanding that it would eventually receive three subdivided freehold titles.
The ELC, in its December 2021 judgment, found the agreement valid and enforceable, dismissing Harambee Sacco’s argument that it had only intended to sell the maisonettes standing on the land, not the underlying freehold interest itself. The court went on to order specific performance and threw out the Sacco’s counterclaim.
Rather than appeal promptly, Harambee Sacco let the matter lie for years before filing an application in April 2026 seeking extension of time to pursue its appeal, prompting Justice Muchelule to scrutinise the roughly 46-month gap between the ELC judgment and the application.
The Sacco attributed part of the delay to technical glitches on the Judiciary’s electronic filing system, insisting that its record of appeal had been filed just one day late and that the hold-up was minor and outside its control. Toshike Construction pushed back hard against that account, telling the court that the actual delay stretched far beyond a single day and that the Sacco had offered no credible explanation for its prolonged silence in the years following the ELC ruling.
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Justice Muchelule sided largely with Toshike Construction on this point, finding that the e-filing difficulties cited by the Sacco might reasonably account for a short delay around August 2022, but could not explain the far longer period of inactivity that followed, right up to when the extension application was finally filed in April 2026.
In his ruling, the judge acknowledged that the case had merit, noting that “the intended appeal raises bona fide issues concerning the interpretation and enforcement of the sale agreement and the order of specific performance.” He was, however, unpersuaded that the strength of the appeal alone was enough to save it, adding that “arguability alone is not sufficient where the delay is substantial and not adequately explained.”
The judge laid out the considerations that guide courts weighing such applications, namely the length of the delay, the explanation offered for it, the merits of the intended appeal, and the prejudice the opposing party stands to suffer if time is extended. Weighing those factors together, he concluded that a delay of roughly 46 months was simply too long to overlook, even for a case he agreed was not frivolous on its merits.
With the application for extension of time dismissed, the ELC’s original orders now stand undisturbed: Harambee Sacco is bound to transfer the three subdivided freehold titles to Toshike Construction, bringing the two-decade-old sale agreement to its intended conclusion.
By Masaki Enock
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