Ita Nguru & another v Josphat Njue [2018] KEELC 800 (KLR)
The bottom line
#The court struck out a land appeal filed six days late because the applicants never sought an extension of time, so their injunction request collapsed with it.
What this practically means
#Executive summary
#Key legal issues
#Competency of the appeal filed out of time
The appeal was filed about 6 days out of the 30-day period (after excluding the vacation period under Order 50 Rule 4), without extension of time, and is incompetent.
Order 50 Rule 4 excludes only the period between 21st December and 13th January from computation of time. The order was made on 14th December 2017 and the memorandum of appeal filed on 13th February 2018, leaving about 6 days of unexplained delay. No extension of time was sought or granted, so the appeal fell outside section 79G and section 10A of the Environment and Land Court Act and was incompetent.
Entitlement to temporary injunction pending appeal under Order 42 Rule 6(6)
Since the appeal was incompetent, the court could not exercise its appellate jurisdiction to grant interim relief; the motion was struck out.
Order 42 Rule 6(6) permits the High Court in appellate jurisdiction to grant a temporary injunction provided the procedure for instituting the appeal has been complied with. Compliance is a condition precedent. The appeal having been filed out of time without leave, the condition was not met, and the notice of motion founded on the incompetent appeal had to fail.
Accuracy of the Appellants' account of the lower court order
The Magistrate's court had issued an interim injunction against the Appellants, not an eviction order; the injunction was a positive order.
The Appellants contended that the Magistrate's court issued an eviction order which was a negative order incapable of being stayed. However, the exhibits to the supporting affidavit showed the court had in fact issued an interim injunction restraining the Appellants from entering, destroying trees and fences, and cultivating parcel No. 2985 pending the suit's determination. This undermined the basis of the application.
Legal principles established
#- The High Court on appeal may only grant a temporary injunction pending appeal where the procedure for instituting the appeal from the subordinate court has been complied with
- An appeal filed out of time without leave of court is incompetent and an application predicated on it does not lie
Court orders
#- 1.The Appellants' memorandum of appeal and the notice of motion both dated and filed on 13th February 2018 are struck out with costs to the Respondent
- On appeal from
- Magistrate's Court at Siakago
- Siakago PMCC No. 80 of 2017
- Jurisdiction invoked
- Order 42 Rule 6(6) of the Civil Procedure Rules - appellate jurisdiction of the High Court to grant a temporary injunction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ita Nguru & another v Josphat Njue [2018] KEELC 800 (KLR)", Case Analysis (2018). Embu ELC Appeal (memorandum of appeal dated 13th February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/800/eng@2018-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.