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ELCOtherNakuru CMCC No. 2126 of 2005 (appeal therefrom; application dated 13 April 2015)· [2016] KEELC 634 (KLR)

Serah Wanjiru Migwi & another v Njoki Njenga [2016] KEELC 634 (KLR)

Environment & Land Court
20 July 2016
769 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The respondent in an appeal from Nakuru CMCC No. 2126 of 2005 (a land dispute decided by Hon. J. N. Mwaniki, Senior Principal Magistrate) applied by notice dated 13 April 2015 to strike out the appellants' Memorandum of Appeal dated 16 August as having been filed outside the 30-day period prescribed by Section 79G of the Civil Procedure Act. Counsel for the applicant argued that Section 79G was mandatory and relied on four eKLR authorities. The appellants, through the affidavit of Sarah Wanjiru Migwi, explained that she did not know her former advocates had filed the appeal, that she had herself applied for leave to appeal out of time in a separate miscellaneous application, and asked the court to extend time. Munyao Sila J found that the Memorandum of Appeal was indeed one day late, since judgment was delivered on 16 July and the appeal should have been filed by 15 August. However, exercising discretion under the proviso to Section 79G, and taking into account the triviality of the delay and the ease of confusing months of 30 and 31 days, the court extended time and deemed the appeal properly filed, on condition that the appellants pay the respondent throw away costs of Kshs. 10,000/= within 30 days, in default of which the Memorandum of Appeal would stand struck out. The judgment contains internal inconsistencies in the years given for the judgment and filing dates, which are flagged but do not affect the outcome.

Key legal issues

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01

Compliance with the 30-day time limit in Section 79G of the Civil Procedure Act

Holding

The Memorandum of Appeal was filed one day late, outside the 30-day period

Reasoning

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.

p. 2
02

Whether the court should exercise discretion to extend time

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Time extended so that the Memorandum of Appeal is deemed to have been filed within time
  2. 2.Respondent awarded throw away costs of Kshs. 10,000/= payable within 30 days
  3. 3.In default of payment of the throw away costs, the Memorandum of Appeal to stand struck out

Authorities

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Legislation

  • Civil Procedure ActSection 79G

Cases cited (4)

  • Postal Corporation of Kenya vs Job Gachenge Njagi
    (2004) eKLR
  • Godfrey Kariuki Gathingi vs Gladys Njeri Kirongo & 2 Others
    (2015) eKLR
  • Sammy K. Kirui vs Remmy K. Korir
    (2015) eKLR
  • MG & Another (Children Appealing through FWM) vs JKG
    (2015) eKLR
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

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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, "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.