Serah Wanjiru Migwi & another v Njoki Njenga [2016] KEELC 634 (KLR)
The bottom line
#A Nakuru court spared a land appeal filed just one day late, but only if the appellants pay Kshs. 10,000 in costs within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Compliance with the 30-day time limit in Section 79G of the Civil Procedure Act
The Memorandum of Appeal was filed one day late, outside the 30-day period
Judgment was delivered on 16 July and, since July has 31 days, the appeal ought to have been filed by 15 August at the latest. The Memorandum was filed on 16 August, one day outside the statutory limit, though the court noted it was easy to confuse months of 30 and 31 days.
Whether the court should exercise discretion to extend time
The court extended time, deeming the appeal properly filed, subject to payment of throw away costs of Kshs. 10,000/= within 30 days, failing which the appeal stands struck out
Balancing the mandatory language of Section 79G urged by the applicant against the proviso allowing admission out of time, the court considered the totality of circumstances: the delay was only one day and attributable to confusion over the number of days in July. Doing justice to the parties favoured extension on terms protecting the respondent with costs.
Legal principles established
#- An appeal from a subordinate court to the High Court must be filed within 30 days, but the proviso to Section 79G permits admission out of time on good and sufficient cause
- The court may in its discretion extend time for a marginally late appeal in the interest of justice, conditional on throw away costs
Court orders
#- 1.Time extended so that the Memorandum of Appeal is deemed to have been filed within time
- 2.Respondent awarded throw away costs of Kshs. 10,000/= payable within 30 days
- 3.In default of payment of the throw away costs, the Memorandum of Appeal to stand struck out
- On appeal from
- Senior Principal Magistrate's Court, Nakuru
- Nakuru CMCC No. 2126 of 2005
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (appellate jurisdiction of the High Court over subordinate courts, exercised by the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Serah Wanjiru Migwi & another v Njoki Njenga [2016] KEELC 634 (KLR)", Case Analysis (2016). Nakuru CMCC No. 2126 of 2005 (appeal therefrom; application dated 13 April 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/634/eng@2016-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.