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ELCDismissedNot stated in the judgment· [2017] KEELC 1337 (KLR)

Michael Wachira Gakuo v Elizabeth Wamuyu Githinji [2017] KEELC 1337 (KLR)

Environment and Land Court
12 October 2017
LWL N Waithaka
1,484 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nyeri land court confirmed it can extend appeal deadlines, but refused this applicant's request because his intended appeal stood little chance of succeeding.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 18th April, 2017 in which the applicant, Michael Wachira Gakuo, sought leave to appeal out of time against a ruling of the Environment and Land Court at Nyeri delivered on 30th January, 2017. The application was grounded on the applicant's status as a layman unfamiliar with appeal timelines, his illness, and the absence of bad faith, though it was said to be unopposed at the hearing. The respondent opposed on grounds of lack of jurisdiction, lack of merit and inordinate delay. The court framed three issues: its jurisdiction to extend time, the merits of the application, and costs. On jurisdiction, Waithaka J adopted Munyao J's reasoning in Loise Chemutai Ngurule, holding that Section 7 of the Appellate Jurisdiction Act confers power on the High Court and courts of equal status, including the Environment and Land Court, to extend time for filing a notice of appeal, concurrently with the Court of Appeal under Rule 4, and declined to follow Simon Towett Martim which held otherwise. On the merits, the court applied the well-settled principles from Stanley Kahoro Mwangi and the Mutiso line of authorities. Although sympathising with the applicant's ignorance of the law and illness, the court found that neither the notice of appeal nor the appeal was filed within the statutory periods, that the applicant had not identified grounds of appeal, and that because the ruling dismissed his suit as res judicata based on prior unappealed proceedings, the intended appeal was unlikely to be arguable. The application was therefore dismissed with costs to the respondent on 12th October, 2017.

Key legal issues

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01

Jurisdiction of the ELC to extend time to file an appeal out of time

Holding

The court has jurisdiction, adopting Section 7 of the Appellate Jurisdiction Act as construed in Loise Chemutai Ngurule

Reasoning

The court adopted Munyao J's reasoning that Section 7 of the Appellate Jurisdiction Act confers on the High Court - which now includes courts of equal status such as the Environment and Land Court - express power to extend time for giving notice of intention to appeal. Rule 4 of the Court of Appeal Rules gives the Court of Appeal a parallel power but not an exclusive one, so a party may approach either court.

p. 2
02

Whether the applicant deserves extension of time

Holding

The application fails because the intended appeal is not arguable

Reasoning

Applying the Mutiso/Mwangi v Kenya Airways factors - length and reason of delay, arguability and prejudice - the court found the applicant's ignorance of the law and illness insufficient. The ruling dismissed his suit as res judicata, the earlier proceedings were never appealed, and the applicant did not identify the grounds of the intended appeal, so the appeal was not arguable and no extension was warranted.

p. 3

Legal principles established

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  • The power to extend time for filing a Notice of Appeal is vested in both the High Court (and courts of equal status) and the Court of Appeal; one may approach either court.
  • The period and reason for delay, arguability of the appeal, prejudice to the respondent and other relevant factors guide extension-of-time discretion.

Court orders

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  1. 1.The application dated 18th April, 2017 is dismissed with costs to the respondent

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 41
  • Court of Appeal RulesRules 75 and 82
  • Constitution of Kenya, 2010Not specified

Cases cited (6)

  • 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
  • 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)
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act, CAP 9

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, "Michael Wachira Gakuo v Elizabeth Wamuyu Githinji [2017] KEELC 1337 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1337/eng@2017-10-12

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