Cheruiyot Chepkwony alias Mapengo v Sarah Chesiele Barta & another [2015] KEELC 412 (KLR)
The bottom line
#A Kenyan land court ruled that only the Court of Appeal can extend time to file a record of appeal, and refused to stay a judgment where the disputed land had already been subdivided.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to extend time for filing a record of appeal out of time
The High Court lacks jurisdiction; the prayer must be sought from the Court of Appeal
The applicant relied on Order 8 of the Civil Procedure Rules and Sections 3A and 95 of the Civil Procedure Act. Order 8 concerns amendment of pleadings and is inapplicable. Section 95 only enlarges periods fixed under the Civil Procedure Act itself, and extension of time to lodge a record of appeal is not covered by that Act but by the Appellate Jurisdiction Act, whose Section 7 limits the High Court's power to extension of time for the notice of appeal. No provision empowers the High Court to extend time for the record of appeal, so the request falls outside the court's jurisdiction.
Whether stay of execution pending appeal can issue
Stay refused as there is nothing to stay
The judgment sought to be appealed merely dismissed the plaintiff's adverse possession claim because the issue had been decided in Kericho HCCC No. 32 of 1996. The land parcel Kericho/Kimulot/514 has since been sub-divided into parcels 1551 and 1552 pursuant to the decree in that earlier suit. With the suit property no longer in existence, there is no subject matter capable of being stayed, and the application has been overtaken by events.
Legal principles established
#- The High Court has no jurisdiction to extend time for filing the record of appeal to the Court of Appeal; that power rests with the Court of Appeal itself. The High Court's power under Section 7 of the Appellate Jurisdiction Act extends only to the notice of appeal.
- Section 95 of the Civil Procedure Act applies only where the act to be done is prescribed or allowed under the Civil Procedure Act, and does not cover extension of time to lodge a record of appeal, which is governed by the Appellate Jurisdiction Act.
Court orders
#- 1.The application for substitution was conceded and allowed
- 2.The application (prayers for extension of time to file record of appeal out of time and stay of execution pending appeal) dismissed with costs
- Jurisdiction invoked
- Sections 3A and 95 of the Civil Procedure Act and Section 7 of the Appellate Jurisdiction Act considered in a ruling on an application under Order 8 Rules 3,4,5,8,9 and Order 25 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheruiyot Chepkwony alias Mapengo v Sarah Chesiele Barta & another [2015] KEELC 412 (KLR)", Case Analysis (). Kericho ELC (O.S) filed 30th January 2003, arising from suit dismissed 3rd August 2009 by Ang'awa J. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/412/eng@2015-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.