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ELCDismissedNot stated in judgment (Kitale ELC suit concerning Title Number Trans-Nzoia/Cherangani/35)· [2018] KEELC 75 (KLR)

Lilian Sayo Agola v Jacob Wafula Musungu [2018] KEELC 75 (KLR)

Environment and Land Court
31 July 2018
3,663 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kitao court refused a landowner's request to appeal late and stop execution, because the 463-day delay was unexplained and the underlying defence was weak.

What this practically means

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Executive summary

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The defendant in a Kitale Environment and Land Court suit brought a notice of motion dated 18 June 2018 seeking, principally, an extension of time to file a Notice of Appeal against the court's ruling of 13 March 2017, which had dismissed his applications to set aside an ex parte judgment of 11 October 2016 and the decree issued thereafter, together with stay of execution of that judgment and decree. The application invoked Section 7 of the Appellate Jurisdiction Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, the Civil Procedure Act and Article 159(2)(d) of the Constitution. The respondent opposed, contending the delay of approximately 463 days was inordinate and unexplained, that there was no evidence the former advocates were instructed to appeal or paid to do so, that no notice of appeal or request for certified proceedings was ever filed, and that negative orders dismissing a set-aside application are not capable of being stayed. Mwangi Njoroge J confirmed that the Environment and Land Court, being of equal status with the High Court, may extend time under Section 7 of the Appellate Jurisdiction Act. However, the court found the delay inordinate and insufficiently explained, distinguishing the applicant's position from the facts in Edward Njane Nganga where only a 9-day delay occurred and supporting evidence of payment existed. On arguability, the court revisited its earlier findings that the defendant's defence raised no triable issues, describing the defence as poor and implausible. The application was dismissed with costs to the respondent on 31 July 2018.

Key legal issues

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Extension of time to file a Notice of Appeal under Section 7 of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules

Holding

The discretion exists but was not exercised in the applicant's favour because the delay of approximately 463 days was inordinate and insufficiently explained; there was no evidence of instructions to the former advocates or payment of fees for the notice of appeal, and no notice of appeal or request for certified proceedings was ever filed.

Reasoning

The court accepted the respondent's submission that blame on the former advocates was unsubstantiated, while noting that informal client-advocate communication is common in individual litigation. It contrasted the 463-day delay with the 9-day delay in the Edward Njane Nganga case where supporting evidence existed, and found no comparable supporting actions here.

p. 4
02

Chances of the intended appeal succeeding

Holding

The intended appeal was not arguable because the underlying defence was poor and implausible, and the ruling of 13/3/2017 had already examined the merits of the defence and found no triable issues.

Reasoning

The court looked beyond the decision of 13/3/2017 and revisited its own earlier findings that the defendant's defence raised no triable issues: the defendant was served, was in occupation, and filed no witness statements or documents. Nothing new in the instant application could alter that opinion.

p. 4

Legal principles established

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  • The Environment and Land Court, being of equal status with the High Court, has jurisdiction under Section 7 of the Appellate Jurisdiction Act to extend time for filing a Notice of Appeal.
  • A plausible and satisfactory explanation of delay is the key that unlocks the court's discretionary favour in an application for extension of time.

Court orders

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  1. 1.The application dated 18th June 2018 is dismissed with costs to the respondent

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
  • Civil Procedure Rules 2010Order 42 Rule 6; Order 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3, 3A & 63(e)
  • Constitution of KenyaArticle 159(2)(d)
  • Court of Appeal RulesRule 75 (Notice of Appeal); Rule 4 (Extension of time)

Cases cited (15)

  • Edward Njane Nganga and Another -vs- Damaris Wanjiku Kamau and Another
    2016 eKLR
  • Paul Wanjohi Mathenge -vs- Duncan Gichane Mathenge
    Nyeri CA Appl. No 50 of 2010 (2013) eKLR
  • CMC Holdings Ltd -vs- Nzioki
    (2004) 1 KLR 173
  • Philip Kiptoo Chemwolo -vs- Augustine Kubende
    (1986) KLR 495
  • Lucy Bosire -vs- Kehancha Divisional Land Disputes Tribunal & 2 Others
    (2014) eKLR
  • Savings and Loan Limited -vs- Susan Wanjiru Muritu
    Nairobi Milimani HCCC 397 of 2000
  • Edney Adaka Ismai -vs- Equity Bank
    (2014) eKLR
  • Itute Ingu and John Malava Mutungu -vs- Isumael Mwakavi
    Nairobi CA Application 166 of 1994
  • Nguruman Limited -vs- Shompole Group Ranch & Another
    Nairobi CA Civil Application No. 90 of 2013 (2014) eKLR
  • Mukuma –vs- Abuoga
    (1988) KRL 645
  • Turbor Transporters Ltd –vs- Absolom Dova Lubasi
    HCCA No. 37 of 2012
  • Kenya Airports Authority & Another Vs Timothy Nduvi Mutungi
    Nbi CA Appl. No. Nrb 165/2013 (UR 113/2013) (2014) eKLR
  • Stanley Kahoro Mwangi & 2 Others vs Kanyamwi Trading Co. Ltd
    2015 eKLR
  • Fakir Mohamed vs Joseph Mugambi & 2 Others
    Civil Appl. No. Nai 332 of 2004
  • Port Reitz Maternity Vs James Karanga Kabia
    Civil Appeal No. 63 of 1997
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act Cap 9; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B, 3, 3A & 63(e) of the Civil Procedure Act Cap 21; Article 159(2)(d) of the Constitution of Kenya

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, "Lilian Sayo Agola v Jacob Wafula Musungu [2018] KEELC 75 (KLR)", Case Analysis (2018). Not stated in judgment (Kitale ELC suit concerning Title Number Trans-Nzoia/Cherangani/35). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/75/eng@2018-07-31

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