Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedSPMCC No. 56 of 2014 (Molo) appeal· [2017] KEELC 1170 (KLR)

Jonathan Kipkorir Kenduiywa v Charles Kipkoech Kigen [2017] KEELC 1170 (KLR)

Environment and Land Court
19 October 2017
1,740 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to accept a late land appeal because the appellant never explained the four-month delay under oath, so the original judgment stands.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Nakuru (D. O. Ohungo, J) determined the appellant's Notice of Motion dated 20th January 2017 seeking leave to file an appeal out of time against the judgment in SPMCC No. 56 of 2014 (Molo), brought under sections 3A, 79G and 95 of the Civil Procedure Act and Order 42 Rule 6(1) of the Civil Procedure Rules. The appeal, filed on 12th April 2016, was about four months late whether measured from the date of judgment given by the parties (16th September 2015) or ascertained from the record of appeal (16th November 2015). The application had been transferred from the High Court to the Environment and Land Court by order of 22nd March 2017. The court noted the applicant's confusion between applications for enlargement of time and for stay pending appeal, but proceeded pragmatically to treat the application as one for admission of an appeal filed out of time, guided by Article 159 of the Constitution. Applying Section 79G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act, and the guidelines in Mwangi v Kenya Airways Ltd, the court found the delay inordinate and unexplained: the supporting affidavit gave no reason for the delay, and reasons advanced through submissions were rejected because submissions do not constitute evidence. The respondent deposed that allowing the application would keep him from the fruits of his judgment, which the court held was prejudice it could not ignore. The application was dismissed with costs.

Key legal issues

#
01

Whether the four-month delay in filing the appeal was excusable

Holding

The delay of about four months was inordinate and no acceptable explanation was provided on oath

Reasoning

The memorandum of appeal was filed about four months after the statutory thirty-day period, and the application for admission was filed a further eight months later. The supporting affidavit gave no explanation for the delay; the reasons attempted through submissions were unacceptable because submissions are not evidence.

p. 3
02

Whether the respondent would suffer prejudice if the appeal were admitted out of time

Holding

Denying the respondent the fruits of his judgment constitutes prejudice the court cannot ignore, absent any explanation for the delay

Reasoning

The respondent deposed on oath that he had not been able to enjoy the fruits of the judgment. Since the applicant offered no explanation for the delay, the court found that keeping the respondent from the fruits of his litigation was prejudice that could not be ignored.

p. 3
03

Guidelines for extension/admission of time applications

Holding

The court adopted the Court of Appeal guidelines in Mwangi v Kenya Airways (length of delay, reason for delay, chances of appeal succeeding, prejudice to respondent)

Reasoning

The court relied on the Court of Appeal's guidelines in Mwangi v Kenya Airways Ltd, quoting Leo Sila Mutiso v Rose Hellen Wangari Mwangi, that the decision to extend time is discretionary and considers the length of delay, reason for delay, chances of the appeal succeeding and prejudice to the respondent, the list not being exhaustive.

p. 3

Legal principles established

#
  • Reasons for delay in filing an appeal must be put before the court in the form of evidence on oath; submissions do not constitute evidence
  • An applicant for admission of an appeal out of time must satisfy the court that there was good and sufficient cause for not filing the appeal in time

Court orders

#
  1. 1.Notice of Motion dated 20th January 2017 dismissed with costs

Authorities

#

Legislation

  • Civil Procedure Actsections 3A, 79G, 95
  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Environment and Land Court Actsections 13(2), 16A
  • Constitution of KenyaArticle 159

Cases cited (2)

  • Mwangi –v- Kenya Airways Limited
    [2003] KLR 486
  • Leo Sila Mutiso –v- Rose Hellen Wangari Mwangi
    Civil Application No. Nai. 255 of 1997 (unreported)
On appeal from
Senior Principal Magistrate's Court, Molo
SPMCC No. 56 of 2014 (Molo)
Jurisdiction invoked
Sections 3A, 79G and 95 of the Civil Procedure Act; Section 16A of the Environment and Land Court Act; Order 42 Rule 6(1) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jonathan Kipkorir Kenduiywa v Charles Kipkoech Kigen [2017] KEELC 1170 (KLR)", Case Analysis (2017). SPMCC No. 56 of 2014 (Molo) appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1170/eng@2017-10-19

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