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ELCStruck OutEmbu ELC Appeal (memorandum of appeal dated 13th February 2018)· [2018] KEELC 800 (KLR)

Ita Nguru & another v Josphat Njue [2018] KEELC 800 (KLR)

Environment and Land Court
25 October 2018
984 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By a notice of motion dated 13th February 2018 under Order 42 Rule 6 of the Civil Procedure Rules, the Appellants sought a temporary injunction restraining the Respondent from interfering with their occupation and use of an undisclosed sub-division of Title No. Mbeere/Kirima/2244 pending appeal. They asserted that the Magistrate's Court at Siakago in PMCC No. 80 of 2017 had on 14th December 2017 issued an eviction order against them which, being a negative order, was incapable of being stayed. The court, however, found from the exhibits that the Magistrate's court had only issued an interim injunction restraining the Appellants from entering, destroying trees and fences, and cultivating parcel No. Mbeere/Kirima/2985 pending trial. The Respondent opposed the application, contending the Appellants occupied parcel No. 2999, that only an interim injunction had issued regarding parcel No. 2985, and that the application and appeal were filed out of time without leave and were incompetent. Because the application was predicated on the existence of the appeal, the court first addressed competency. Under Order 50 Rule 4, only the period between 21st December 2017 and 13th January 2018 was excluded from the computation of time; the appeal filed on 13th February 2018 was therefore out of time by about six days. No extension of time had been sought. The court held the appeal was filed out of time without leave and was incompetent; consequently, the notice of motion predicated on it did not lie. Both the memorandum of appeal and the notice of motion dated 13th February 2018 were struck out with costs to the Respondent.

Key legal issues

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01

Competency of the appeal filed out of time

Holding

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.

Reasoning

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.

p. 2
02

Entitlement to temporary injunction pending appeal under Order 42 Rule 6(6)

Holding

Since the appeal was incompetent, the court could not exercise its appellate jurisdiction to grant interim relief; the motion was struck out.

Reasoning

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.

p. 1
03

Accuracy of the Appellants' account of the lower court order

Holding

The Magistrate's court had issued an interim injunction against the Appellants, not an eviction order; the injunction was a positive order.

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 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

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 (including Rule 6(6))
  • Civil Procedure RulesOrder 50 Rule 4
  • Civil Procedure Rules (as stated in the judgment)section 79G
  • Environment and Land Court Actsection 10A
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

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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, "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.