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ELCPartially AllowedNot stated in the judgment· [2015] KEELC 513 (KLR)

Mbugua Kamau Mugwe & 2 others v Jospeh Kimani Kangethe & 2 others [2015] KEELC 513 (KLR)

Environment and Land Court
21 April 2015
MSMunyao Sila
834 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Nakuru court confirmed you can ask the court that heard your case for more time to file an appeal, even after the deadline has passed.

What this practically means

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Executive summary

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This was an application by the unsuccessful plaintiffs in a suit heard before the Environment and Land Court at Nakuru, seeking enlargement of time within which to lodge a Notice of Appeal out of time, brought under Section 7 of the Appellate Jurisdiction Act, CAP 9, and Rules 12 and 42 of the Court of Appeal Rules, 2010. The applicants' case, supported by the affidavit of Peter Njuguna Kamande, was that judgment had originally been expected on 10 December 2014 but was instead delivered on 30 January 2015 on notice, without the knowledge of either the applicants' or the respondents' counsel, both of whom were absent. The applicants only learned of the judgment on 23 February 2015, by which time the 14-day period for lodging a Notice of Appeal had expired. Mr Kiiru Chege for the respondents did not oppose the application and agreed the delay was not inordinate. The court held that Section 7 of the Appellate Jurisdiction Act empowers the High Court, and arguably courts of similar jurisdiction including the Environment and Land Court and the Industrial Court, to extend time for filing a Notice of Appeal. It declined to attach relevance to Rules 12 and 42 of the Court of Appeal Rules, observing that invoking those Rules would point to the Court of Appeal as the competent forum. Finding no notice of judgment delivery on the file, the judge gave the plaintiffs the benefit of the doubt, held the delay was not inordinate, and in his discretion enlarged time, directing the plaintiffs to file and serve their Notice of Appeal within 14 days. The applicants were, however, ordered to bear the costs of the application.

Key legal issues

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01

Whether the High Court has power to extend time for lodging a Notice of Appeal out of time

Holding

Yes, Section 7 of the Appellate Jurisdiction Act confers that power, and courts of similar jurisdiction such as the Environment and Land Court arguably share it.

Reasoning

The court quoted Section 7 verbatim and concluded it gives the High Court leeway to grant leave to file a Notice of Appeal out of time, extending this reasoning by analogy to courts of similar jurisdiction. The court also noted the proviso barring extension in death sentence cases after issue of the execution warrant, though it was not relevant here.

p. 2
02

Whether the delay in filing the Notice of Appeal was inordinate and whether enlargement of time should be granted

Holding

The delay was not inordinate and there was good reason for it; time was enlarged in the applicants' favour.

Reasoning

The court found the record did not show a notice of judgment delivery was ever served, and gave the plaintiffs the benefit of the doubt. Counsel for the respondents did not oppose the application and agreed the delay was not inordinate. The judge exercised his discretion to enlarge time by 14 days, while denying the applicants costs.

p. 2
03

Whether Rules 12 and 42 of the Court of Appeal Rules, 2010 were applicable to the application

Holding

They were not relevant; invoking the Court of Appeal Rules would confer jurisdiction on the Court of Appeal, not this court.

Reasoning

The judge noted that although the application cited Rules 12 and 42 of the Court of Appeal Rules, 2010, Rule 12 concerns receiving documents out of time and Rule 42 the form of applications, neither of which was necessary. Further, 'court' in those Rules means the Court of Appeal, so reliance on them would defeat the jurisdiction invoked.

p. 2

Legal principles established

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  • The High Court and courts of similar jurisdiction have power to enlarge time for filing a Notice of Appeal out of time under Section 7 of the Appellate Jurisdiction Act
  • Rules 12 and 42 of the Court of Appeal Rules, 2010 are not the proper basis for an application to the High Court for enlargement of time

Court orders

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  1. 1.Time enlarged and the plaintiffs directed to file and serve their Notice of Appeal within the next 14 days
  2. 2.The applicants to bear the costs of the application

Authorities

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Legislation

  • Appellate Jurisdiction Act, CAP 9, Laws of KenyaSection 7
  • Court of Appeal Rules, 2010Rules 12 and 42
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act, CAP 9, Laws of Kenya

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, "Mbugua Kamau Mugwe & 2 others v Jospeh Kimani Kangethe & 2 others [2015] KEELC 513 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/513/eng@2015-04-21

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