Njue v Cabinet Secretary in charge of Lands and Physical Planning & 4 others

Court of Appeal

11 November 2022

WKW Karanja

956 words in judgment

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The bottom line

What this practically means

Executive summary

This is a single-judge ruling of the Court of Appeal at Nyeri (W Karanja, JA) on a Notice of motion dated June 10, 2022 brought under Rule 4 of the Court of Appeal Rules, seeking leave to file a record of appeal out of time against the entire judgment of the ELRC at Meru (N. wa Makau, J) dated February 18, 2021, which had dismissed the applicant's judicial review application challenging the Cabinet Secretary's decision in a minister's land adjudication appeal concerning Kamwimbi 'A' Adjudication Section parcels. The applicant failed to lodge a Notice of appeal within 14 days of the judgment; the Notice eventually filed on May 27, 2021 was almost a month out of time and without leave. The 5th respondent opposed, arguing there was no explanation for the delay and that the out-of-time Notice of appeal was invalid and could not support a record of appeal. The court agreed, holding that the motion sought extension of time only for filing the record of appeal, not the Notice of appeal, and that a party is bound by its pleadings so the court could not grant unpleaded relief. Counsel's submissions proceeded on the mistaken belief that a valid Notice of appeal was on record. The application was found intrinsically bad and devoid of merit and was dismissed with costs to the 5th respondent. The decision below was not disturbed; no appeal was ever validly instituted.

Key legal issues

Whether leave to file a record of appeal out of time can be granted where the Notice of appeal itself was filed out of time without leave

Holding

The application fails because the Notice of appeal was filed almost one month late and is invalid; without a valid Notice of appeal and without a prayer to extend time for filing one, the application is devoid of merit

Reasoning

The single judge held that the prescribed 14-day period for lodging a Notice of appeal had expired and the Notice filed on May 27, 2021 was almost a month late. The motion sought extension only for filing the record of appeal, not the Notice of appeal. Since a party is bound by its pleadings, the court could not grant unpleaded relief, and an invalid Notice of appeal cannot anchor a record of appeal.

p. 2

Legal principles established

A party is bound by its pleadings and a court cannot grant orders that have not been sought
A Notice of appeal filed out of time and without leave is invalid and cannot support a record of appeal

Court orders

1.The application for leave to file a record of appeal out of time is dismissed with costs to the 5th respondent

Authorities

Legislation

Court of Appeal RulesRule 4

On appeal from: Environment and Land Court at Meru; ELRC Case No. 43 of 2019 (formerly Nyeri 527 of 2017)
Jurisdiction invoked: Rule 4 of the Court of Appeal Rules (application for leave/extension of time)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Njue v Cabinet Secretary in charge of Lands and Physical Planning & 4 others", Case Analysis (2022). Civil Application E040 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1437/eng@2022-11-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.