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ELCPartially AllowedNotice of Motion dated 20th April 2017 (arising from Kericho CMCC No. 149 of 2016)· [2017] KEELC 215 (KLR)

Elkana Samwel Main Matu v Teresiah Njoki Matu (suing as the administrator of the estate of Joseph Matu Macharia) [2017] KEELC 215 (KLR)

High Court of Kenya
14 December 2017
JOJ. M. Onyango
2,314 words in judgment
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The bottom line

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The High Court in Kericho allowed the applicants to file their appeal late, but refused to stop the respondent from dealing with the property.

What this practically means

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Executive summary

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This ruling by the High Court at Kericho (J.M Onyango, J) determined a notice of motion dated 20th April 2017 seeking leave to file an appeal out of time against a magistrates' ruling of 1st March 2017 dismissing the applicants' preliminary objection on jurisdiction in Kericho CMCC No. 149 of 2016, and an injunction restraining the Respondent from interfering with furniture, fixtures and fittings on plot 631/111/305 Kericho Municipality. The court framed four issues: good and sufficient cause for the delay, arguability of the appeal, the conditions for injunction, and entitlement to relief. Applying the Supreme Court's principles in Nicholas Kiptoo Arap Korir v IEBC, the court held that a delay of under one month, attributable to settlement efforts, a missing court file and the time taken to obtain certified proceedings, was not inordinate, and that the Respondent had shown no prejudice. The issues in the Memorandum of Appeal were found not frivolous. The court declined the injunction, finding insufficient material demonstrating the conditions for an injunctive order were met. On the Respondent's objection to the joint affidavit, relying on Thomas Malinda Musau, the court distinguished that authority, holding that jointly sworn affidavits are acceptable where each deponent's paragraphs are identifiable, and that Order 19 rule 7 cures formal irregularities. The application succeeded on the leave prayer only: leave to appeal out of time was granted, lapsing automatically if the appeal was not filed within 14 days, with each party bearing their own costs.

Key legal issues

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01

Extension of time to appeal under section 79G

Holding

Good and sufficient cause was shown; leave to appeal out of time granted

Reasoning

The court applied the seven principles in Nicholas Kiptoo Arap Korir v IEBC. The delay was occasioned by settlement efforts, an untraceable court file, and the time taken to obtain certified proceedings. The delay was under one month, hence not inordinate, and the Respondent demonstrated no prejudice.

p. 3
02

Arguability of the intended appeal

Holding

The issues raised in the Memorandum of Appeal are not frivolous

Reasoning

The court perused the Memorandum of Appeal and the lower court proceedings and was satisfied that the grounds, including jurisdiction over the landlord-tenant dispute, deserved consideration on appeal.

p. 3
03

Jointly sworn affidavit

Holding

The joint affidavit was not struck out; defect curable under Order 19 rule 7

Reasoning

Distinguishing Thomas Malinda Musau, the court held joint affidavits are permissible where deponents depose to the same facts, and where each deponent's paragraphs can be identified the affidavit should stand. Order 19 rule 7 permits reception of affidavits notwithstanding irregularity in form.

p. 3

Legal principles established

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  • A delay of less than one month in filing an appeal, where proceedings had only recently been made available and no prejudice is shown, is not inordinate and constitutes good and sufficient cause under section 79G
  • Jointly sworn affidavits are not automatically struck out; the court considers whether each deponent's portions are identifiable, and Order 19 rule 7 cures irregularities in form

Court orders

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  1. 1.Leave granted to the applicants to file their intended appeal out of time
  2. 2.The appeal shall be filed within 14 days from the date of the ruling; failing which the leave lapses automatically
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure Actsection 79G
  • Civil Procedure Actsection 1A
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 63(c) and (e)
  • Civil Procedure RulesOrder 19 Rule 5
  • Civil Procedure RulesOrder 19 rule 7
  • Constitution of KenyaArticle 162(2)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (2)

  • Thomas Malinda Musau & 2 Others v Independent Electoral and Boundaries Commission & 2 Others
    (2013) eKLR
  • Nicholas Kiptoo Arap Korir v Independent Electoral and Boundaries Commission and 7 Others
    Supreme Court Application no 16 of 2014
On appeal from
Chief Magistrate's Court, Kericho
Kericho CMCC No. 149 of 2016
Jurisdiction invoked
Sections 79G, 1A, 3A and 63(c) and (e) of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Elkana Samwel Main Matu v Teresiah Njoki Matu (suing as the administrator of the estate of Joseph Matu Macharia) [2017] KEELC 215 (KLR)", Case Analysis (2017). Notice of Motion dated 20th April 2017 (arising from Kericho CMCC No. 149 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/215/eng@2017-12-14

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