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Court of AppealStruck OutCivil Appeal No 205 of 2018· [2023] KECA 1048 (KLR)

Mugambi v Electricity Transmission Company Ltd (KETRACO) (Civil Appeal 205 of 2018) [2023] KECA 1048 (KLR)

Court of Appeal
24 August 2023
WKW. KaranjaJMJamila MohammedAMA.O. Muchelule
1,856 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A landowner's appeal against a KETRACO power line easement was struck out because it was filed late, so the original court's decision stands.

What this practically means

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Executive summary

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The appellant owned land parcel No Ntirimiti Settlement Scheme/568, part of which (1.4 acres) was to be affected by KETRACO's Nanyuki-Isiolo-Meru 132KV power transmission line. KETRACO filed originating summons under section 149 of the Land Act, 2012 in the Environment and Land Court at Meru seeking a right of way and right of entry. By a judgment delivered on February 14, 2018, LN Mbugua, J found the public benefit outweighed the appellant's private interests, approved the GIMCO valuation of Kshs 600,000 per acre, ordered registration of an easement over the affected 1.4 acres, and granted KETRACO right of entry. The appellant appealed. At the hearing of the appeal, the respondent raised preliminary objections: the record of appeal was filed out of the 60-day period in Rule 84(1) of the Court of Appeal Rules, 2022 without an extension of time under Rule 4; the proviso to Rule 84(1) was unavailable because the letter bespeaking proceedings was written about 100 days after judgment and was not served on the respondent; and the record lacked a certified decree as required by Rule 89(1)(h). The appellant conceded the delay in furnishing the decree but filed no submissions on competence. The Court held that the notice of appeal died a natural death after 60 days, applied Rule 85(1), and deemed the notice of appeal withdrawn, with costs to the respondent. The substantive dispute over valuation and the easement was therefore not reached, and the ELC judgment was left undisturbed.

Key legal issues

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01

Timeliness of institution of the appeal and the operation of the proviso to Rule 84(1)

Holding

The proviso to Rule 84(1) could not be invoked because the appellant's letter bespeaking proceedings was written about 100 days after judgment, outside the 30-day window, and was not served on the respondent; the record of appeal was therefore filed out of the statutory time

Reasoning

Rule 84(1) requires an appeal to be instituted within 60 days of the notice of appeal. The proviso excludes certified-preparation time only where the application for proceedings is made in accordance with Rule 84(2), i.e. in writing within 30 days and served on the respondent. The appellant wrote to the trial court roughly 100 days after judgment and did not copy the letter to the respondent, so the proviso was unavailable.

p. 3
02

Consequence of failure to institute the appeal in time and absence of an extension-of-time application

Holding

Without an extension under Rule 4, the notice of appeal died after 60 days and, under Rule 85(1), the appeal is deemed withdrawn; the appellant is liable for costs under Rule 85(2)

Reasoning

Once out of time, the appellant's only recourse was an application under Rule 4 for extension of time, which was never made. Rule 85(1) then deems the notice of appeal withdrawn, and Rule 85(2) makes the defaulting party liable to pay costs. The court applied this scheme to deem the notice withdrawn and to award the respondent costs.

p. 4

Legal principles established

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  • To rely on the proviso to Rule 84(1) of the Court of Appeal Rules excluding time for preparation of proceedings, the appellant must apply for the copy in writing within 30 days of the decision and serve that application on the respondent
  • Where an appellant fails to institute an appeal within the appointed time, the notice of appeal lapses and the appeal is deemed withdrawn under Rule 85(1); a party in default must move under Rule 4 for extension of time

Court orders

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  1. 1.The notice of appeal lodged following the judgment delivered on February 14, 2018 is deemed to have been withdrawn
  2. 2.The appellant shall pay to the respondent the costs of this appeal

Authorities

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Legislation

  • Land Act, 2012section 149
  • Court of Appeal Rules, 2022Rule 84(1)
  • Court of Appeal Rules, 2022Rule 84(2)
  • Court of Appeal Rules, 2022Rule 4
  • Court of Appeal Rules, 2022Rule 85(1)
  • Court of Appeal Rules, 2022Rule 85(2)
  • Court of Appeal Rules, 2022Rule 89(1)(h)
  • Court of Appeal Rules, 2022Rule 118

Cases cited (3)

  • Tharaka Nithi County Government & Another –v- Gaichu & 129 Others
    [2022] KECA 585 (KLR)
  • Mae Properties Limited –v- Joseph Kibe & Another
    [2017] eKLR
  • Bwana Mohamed Bwana –v- Silvano Buko Bonaya & 2 Others
    [2015] eKLR
On appeal from
Environment and Land Court at Meru
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules, 2022; appeal against the judgment of the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mugambi v Electricity Transmission Company Ltd (KETRACO) (Civil Appeal 205 of 2018) [2023] KECA 1048 (KLR)", Case Analysis (2023). Civil Appeal No 205 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1048/eng@2023-08-24

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