Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNotice of motion dated 9th September, 2015 (Miscellaneous Application)· [2016] KEELC 1156 (KLR)

Edward Njane Nganga & another v Damaris Wanjiku Kamau & another [2016] KEELC 1156 (KLR)

Environment and Land Court
3 February 2016
LWL N Waithaka
2,778 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court confirmed you can ask the High Court or Environment and Land Court directly for more time to file an appeal, not just the Court of Appeal.

What this practically means

#

Executive summary

#
The applicants, Edward Njane Nganga and Samuel Mwangi Nganga, moved the Environment and Land Court at Nyeri by notice of motion dated 9th September 2015 seeking leave to appeal out of time against the judgment of Ombwayo J. delivered on 9th July 2015, concerning family land they alleged was transferred without their consent. They explained that judgment was delivered in their absence, that a notice of appeal was filed on 20th July 2015, and that delay in obtaining certified proceedings, judgment and decree prevented timely filing of the record of appeal. The respondents opposed through grounds of opposition, contending that the court lacked jurisdiction, that under Rule 4 of the Court of Appeal Rules only the Court of Appeal could extend time, and that the application was an abuse of process. Waithaka J. first determined the jurisdictional objection, adopting Munyao J.'s reasoning in Loise Chemutai Ngurule, that Section 7 of the Appellate Jurisdiction Act confers on the High Court and courts of equal status, including the Environment and Land Court, power to extend time for giving notice of intention to appeal, concurrently with the Court of Appeal under Rule 4, a position endorsed by the Court of Appeal in Kenya Airports Authority v Mutungi. On the merits, applying the Rule 4 principles in Stanley Kahoro Mwangi and Mwangi v Kenya Airways, the court found no inordinate delay, a satisfactory explanation for the delay, and no demonstrated prejudice to the respondents. The court extended time to file the appeal by forty-five days, directed supply of record documents within fifteen days, and provided that the window would lapse if the appeal was not filed within the extended time.

Key legal issues

#
01

Jurisdiction of the ELC to extend time for filing an appeal to the Court of Appeal

Holding

The court has jurisdiction under Section 7 of the Appellate Jurisdiction Act, which is concurrent with Rule 4 of the Court of Appeal Rules.

Reasoning

The court adopted Munyao J.'s analysis in Loise Chemutai Ngurule, holding that Section 7 of the Appellate Jurisdiction Act, literally construed, confers jurisdiction on the High Court and courts of equal status (ELC and Industrial Court) to extend time for giving notice of intention to appeal. Rule 4 of the Court of Appeal Rules does not make the Court of Appeal's power exclusive, and the Court of Appeal in Kenya Airports Authority v Mutungi confirmed such applications are properly made in the High Court.

p. 2
02

Entitlement to extension of time on the facts

Holding

Extension granted: judgment was delivered in the applicants' absence, delay was not inordinate, and no substantial prejudice to the respondents was demonstrated.

Reasoning

Applying the Rule 4 principles (period and reason for delay, chances of appeal succeeding, prejudice to respondent), the court found the notice of appeal was filed on 20th July 2015; the delay was due to non-availability of certified proceedings and judgment, not attributable to the applicants; there was no inordinate delay; and the respondents, having only argued jurisdiction, showed no prejudice. The applicants' interest in appealing over family land balanced against the respondents' fruits of judgment favoured extension.

p. 5

Legal principles established

#
  • The power to extend time for filing a Notice of Appeal to the Court of Appeal is vested in both the High Court (and courts of equal status, including the ELC) and the Court of Appeal; a party may approach either court.

Court orders

#
  1. 1.Time within which the applicants ought to have filed an appeal to the Court of Appeal is extended by forty-five (45) days from the date of the ruling
  2. 2.If the applicants have not been supplied with the documents required to prepare the record of appeal, the applicants' counsel to liaise with the Deputy Registrar to ensure they are supplied within fifteen (15) days of the order
  3. 3.If the applicants do not file the appeal within the extended time, the window granted shall automatically lapse

Authorities

#

Legislation

  • Appellate Jurisdiction ActSection 7
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 50 Rule 6
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 41
  • Court of Appeal RulesRule 82
  • Constitution of Kenya, 2010

Cases cited (10)

  • Loise Chemutai Ngurule & Another v. Winfred Leshwari Kimung'en & 2 Others
    (2015) eKLR
  • Simon Towett Martim v Jotham Muiruri Kibaru
    Nakuru High Court, Miscellaneous Civil Application No. 172 of 2004 (2004) eKLR
  • Kenya Airports Authority & Another vs Timothy Nduvi Mutungi
    Civil Application NO. NAI 165 of 2013 (UR 113/2013) (2014) eKLR
  • Stanley Kahoro Mwangi & 2 others v. Kanyamwi Trading Company Limited
    (2015) eKLR
  • MUTISO V MWANGI
    CIVIL APPLN NO. NAI 255 OF 1997 (UR)
  • MWANGI V KENYA AIRWAYS LTD
    {2003} KLR 486
  • FAKIR MOHAMMED V JOSEPH MUGAMBI & 2 OTHERS
    CIVIL APPLN NO. NAI 332 OF 2004 (unreported)
  • M/S PORTREITZ MATERNITY V JAMES KARANGA KABIA
    CIVIL APPEAL NO. 63 OF 1997
  • MONICA MALEL & ANOR V R
    ELDORET CIVIL APPLN NO. NAI 246 OF 2008
  • HAYWOOD V COPE
    (1858) 25 BEAV 140
On appeal from
Environment and Land Court (Nyeri)
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act, CAP 9

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Edward Njane Nganga & another v Damaris Wanjiku Kamau & another [2016] KEELC 1156 (KLR)", Case Analysis (2016). Notice of motion dated 9th September, 2015 (Miscellaneous Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1156/eng@2016-02-03

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