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ELCPartially AllowedApplication of 24.03.17· [2017] KEELC 1655 (KLR)

M’Imanyara Mbwiria & 3 others v Esther Naito [2017] KEELC 1655 (KLR)

Environment and Land Court
27 September 2017
LML. N. MBUGUA
641 words in judgment
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The bottom line

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A Kenyan court allowed an appeal to proceed years late because the court file went missing, and ordered no costs against either side.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Meru on the applicants' application dated 24.03.17 seeking enlargement of time within which to lodge and file a Notice of Appeal and subsequent appeal to the Court of Appeal, out of time. Judgment had been delivered on 08/12/2014 and the applicants instructed their advocate to file a Notice of Appeal on 19/12/2014. The Notice was received in the High Court civil registry on 19/12/2014 but could not be forwarded to the Deputy Registrar because the court file was reported missing. Efforts to trace the file were futile until the respondent's bill of costs came up for taxation, and on 09/12/2016 the Deputy Registrar declined to endorse the Notice of Appeal on the mistaken view that it had been filed in 2016 rather than 2014. The respondent disputed the applicants' account. The court, Hon. L. N. Mbugua, ELC Judge, perused the court records and found that the respondent's own counsel had written to the Deputy Registrar in a letter filed on 04.08.16 confirming that the court file got lost after judgment. The respondent's bill of costs was only filed on 30.08.16. This corroborated the applicants' averments that the Notice of Appeal was ready on 19/12/2014 but could not be acted upon because the file was missing. The court found the application to have merits and allowed it, directing that the Notice of Appeal be filed and served within 7 days of the ruling, and made no orders as to costs since the delay was attributable to the court registry where the file had gone missing.

Key legal issues

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01

Whether the court file was missing, preventing timely filing of the Notice of Appeal

Holding

The court found, on the record including the respondent's own letter, that the file was indeed lost

Reasoning

The court perused its records and found a letter filed on 04.08.16 by the respondent's own counsel to the Deputy Registrar stating that the court file got lost after judgment and could not be filed. The respondent's bill of costs was only lodged on 30.08.16, after the file's disappearance was noted. This corroborated the applicants' account that their Notice of Appeal, ready on 19.12.14, could not be processed because the file was missing.

p. 2
02

Whether the extension of time should be granted

Holding

The application had merits and was allowed with 7 days to file and serve the Notice of Appeal

Reasoning

Having found that the delay was caused by the missing court file rather than the applicants' inaction, the court concluded the application had merit. It directed that the Notice of Appeal be filed and served within 7 days and made no order on costs since the registry bore responsibility for the missing file.

p. 2

Legal principles established

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  • Where a court file goes missing and prevents timely filing of a Notice of Appeal, time may be enlarged to allow the appeal to be lodged

Court orders

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  1. 1.The Notice of Appeal is to be filed and served within 7 days from the date of delivery of the ruling
  2. 2.No orders as to costs
Jurisdiction invoked
Inherent power to enlarge time for filing a Notice of Appeal (extension-of-time application under the appellate procedure rules)

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, "M’Imanyara Mbwiria & 3 others v Esther Naito [2017] KEELC 1655 (KLR)", Case Analysis (2017). Application of 24.03.17. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1655/eng@2017-09-27

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