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ELCStruck OutELC Appeal No. 277 of 2016· [2017] KEELC 3585 (KLR)

Donald Maganga Mwachofi v Ruth Shambo Shuma [2017] KEELC 3585 (KLR)

Environment and Land Court
21 February 2017
AOA. Omollo
2,191 words in judgment
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The bottom line

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A Kenyan court struck out a land appeal filed over two months late, confirming the 30-day appeal deadline is strictly enforced.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Mombasa against the judgment of S.M. Wahome (Senior Principal Magistrate) delivered on 22 April 2015 in Voi SPMCC No. 80 of 2013, in which the trial court dismissed the defendant's counterclaim and entered judgment as prayed in the plaint - eviction, vacant possession of L.R No. 1956/357 and a permanent injunction. The appellant lodged a 49-ground appeal seeking to set aside the judgment, declarations of adverse possession, cancellation of the respondent's title and costs. The respondent's primary submission was that the appeal was incompetent because it was filed out of time: judgment was delivered on 22 April 2015 but the memorandum of appeal was filed on 10 July 2015, well beyond the 30-day limit in section 79G of the Civil Procedure Act, with no application for extension of time, no deeming order and no certificate of delay from the lower court. The court agreed, holding that section 79G is couched in mandatory terms, and declined to consider the appeal on its merits. The appeal was struck out with half costs to the respondent. The court also restated the duty of a first appellate court to re-evaluate evidence as set out in Selle vs Associated Motor Boat Co. Ltd, but did not reach the merits. The trial court's judgment therefore stands undisturbed.

Key legal issues

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01

Competency of an appeal filed out of time under section 79G of the Civil Procedure Act

Holding

The appeal, filed more than two months after judgment without leave of the court and without any certificate of delay, was incompetent and was struck out

Reasoning

Judgment was delivered on 22 April 2015 but the memorandum of appeal was filed on 10 July 2015. No application for extension of time was on record, no oral application to deem the appeal duly filed was made, and no certificate from the lower court excusing delay in preparing the decree was produced. Section 79G is mandatory, so the appeal could not be considered on its merits.

p. 4
02

Duty of a first appellate court

Holding

A first appellate court may re-evaluate the evidence adduced before the trial court and draw its own conclusions, bearing in mind it did not see the witnesses

Reasoning

The court invoked the settled principle in Selle vs Associated Motor Boat Co Ltd that the first appellate court is not bound by the trial court's findings and must subject the evidence to fresh evaluation, while making allowances for the fact that it neither saw nor heard the witnesses testify.

p. 3

Legal principles established

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  • Every appeal from a subordinate court to the High Court must be filed within thirty days from the date of the decree or order appealed against, and an appeal filed out of time without leave is incompetent and liable to be struck out

Court orders

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  1. 1.The appeal is struck out
  2. 2.Half (1/2) costs of the appeal awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure Actsection 79G

Cases cited (3)

  • Selle vs Associated Motor Boat Co. Ltd
    (1968) E.A 123
  • Gregory Kiema Kyuma vs Marietta Syokau Kiema
    (1988) eKLR
  • Ndegwa Kamau t/a Side view Garage vs Fredrick Isika Kahumbo
    (2016) eKLR
On appeal from
Voi Senior Principal Magistrate's Court
Voi SPMCC No. 80 of 2013
Jurisdiction invoked
First appeal from subordinate court under section 79G of the Civil Procedure Act

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, "Donald Maganga Mwachofi v Ruth Shambo Shuma [2017] KEELC 3585 (KLR)", Case Analysis (2017). ELC Appeal No. 277 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3585/eng@2017-02-21

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