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Court of AppealDismissedApplication dated 24th March 2023 (notice of appeal filed 12th February 2021)· [2024] KECA 1014 (KLR)

Njoroge & 2 others v Murang'a & 2 others (Civil Application E026 of 2023) [2024] KECA 1014 (KLR)

Court of Appeal of Kenya
31 May 2023
AMA.O. Muchelule
1,417 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the case was a boundary dispute that only the Land Registrar, not a court, could first decide.

What this practically means

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Executive summary

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This was a single-judge ruling (A.O. Muchelule, JA) at Nyeri on a motion dated 24th March 2023 under Rules 4, 41 and 42(1) of the Court of Appeal Rules, seeking extension of time to file and serve a Memorandum and Record of Appeal against an Environment and Land Court decision of 28th January 2021 (J.G. Kemei, J.). The ELC had sustained a preliminary objection that, under section 18(2) of the Land Registration Act, 2012, it lacked jurisdiction over what was a boundary dispute between registered parcels pending determination by the Land Registrar. A notice of appeal was filed on 12th February 2021, but the application for extension came a year later, explained by the 2nd applicant's illness and treatment in various hospitals as an outpatient, supported by medical chits and reports. The 1st respondent opposed, alleging indolence. The court restated the settled extension-of-time principles from Salat v IEBC and related decisions: explanation of delay, inordinate delay, prejudice, arguability, need for timeous resolution, and public interest. While the illness generally explained the delay, the court examined the draft Memorandum of Appeal and found no arguable ground: the plaint sought restoration of boundaries by the District Surveyor and Director of Survey, which would necessarily follow the Registrar's boundary determination, so the ground on the permanent injunction added nothing. The intended appeal disclosed no chance of success and the application was dismissed. No costs order was made.

Key legal issues

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01

Whether the applicants satisfied the principles for extension of time under Rule 4

Holding

The delay was substantially explained by the 2nd applicant's illness, but the intended appeal had no arguable chances of success, so the application failed.

Reasoning

The court restated the Salat principles: explanation of delay, inordinate delay, prejudice to both sides, arguability, timeous dispute resolution and public interest. Medical chits and reports showed the 2nd applicant was unwell and attending treatment as an outpatient, which generally explained the delay. However, examining the draft Memorandum of Appeal, the court found no quarrel with the ELC's jurisdictional finding and no other dispute between the parties beyond the boundary question, so the appeal was not arguable.

p. 3
02

Whether the intended appeal was arguable

Holding

The intended appeal was not arguable: the dispute was solely a boundary dispute for the Land Registrar, and the injunctive relief sought flowed from the boundary determination, so ground 3 of the draft Memorandum added nothing.

Reasoning

The plaint sought restoration of boundaries by the District Surveyor and the Director of Survey, which would follow the Registrar's boundary determination. There was no independent claim that survived the section 18(2) bar, so the ground about the permanent injunction could not give the appeal a chance of success.

p. 3

Legal principles established

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  • Under Rule 4, extension of time is an exercise of judicial discretion aimed at doing justice between the parties, assessed on the settled principles: explanation of delay, whether it is inordinate, prejudice to each side, arguability of the appeal, need for timeous resolution, and public interest.
  • An applicant for extension of time must demonstrate that the intended appeal is arguable and not a mere frivolity; an extension application will fail where the draft Memorandum of Appeal discloses no possible chance of success.
  • Where a dispute over registered land is a boundary dispute, section 18(2) of the Land Registration Act, 2012 requires that the boundary first be determined by the Land Registrar before a court may entertain the matter.

Court orders

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  1. 1.The application dated 24th March 2023 seeking extension of time to file and serve the Memorandum of Appeal and Record of Appeal is dismissed

Authorities

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Legislation

  • Land Registration ActSection 18(2)
  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 41
  • Court of Appeal Rules, 2010Rule 42(1)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 84(1)

Cases cited (4)

  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others
    [2014] eKLR
  • Ngunjiri v Mbugua & Another
    [2921] KECA 22 (as printed)
  • Imperial Bank Ltd (In Receivership) and Another v Alnasir Popat and 18 Others
    [2018] eKLR
  • Andrew Kiplagat Chemarigo v Paul Kipkorir Kibet
    [2018] eKLR
On appeal from
Environment and Land Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time jurisdiction) in respect of an intended appeal from 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, "Njoroge & 2 others v Murang'a & 2 others (Civil Application E026 of 2023) [2024] KECA 1014 (KLR)", Case Analysis (2023). Application dated 24th March 2023 (notice of appeal filed 12th February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1014/eng@2024-05-31

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