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ELCDismissedNotice of Motion dated 6th May 2016 (Judicial Review proceedings re LR No. NGONG/NGONG TOWNSHIP BLOCK 2/350)· [2018] KEELC 3267 (KLR)

Republic v County Government of Kajiado & 3 others Ex-parte Jackson Karanja Muhia [2018] KEELC 3267 (KLR)

Environment and Land Court
22 May 2018
2,452 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to revive a landowner's appeal filed four years late, ruling the delay was unexplained and the move was an afterthought after losing a separate suit.

What this practically means

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Executive summary

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This is a ruling on the Interested Party's Notice of Motion dated 6th May 2016, brought under sections 3, 3A and 95 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules. John Ole Puley sought a temporary and pending-appeal stay of orders made on 25th April 2012 by Justice M.S. A Makhandia in judicial review proceedings quashing the gazettement recognising him as lessee of LR No. NGONG/NGONG TOWNSHIP BLOCK 2/350, an enlargement of time to file and serve a Notice and Memorandum of Appeal, and injunctive orders against Jackson Karanja Muhia. He contended the 2012 orders were ex parte and obtained without natural justice. The 5th Respondent opposed, arguing the application was filed after over four years of unexplained delay, was an afterthought following the dismissal of the applicant's parallel suit (Nairobi ELC No. 1102 of 2014) in March 2016, and was an abuse of process. Applying the guidelines in Salat, Mathenge, Mwangi v Kenya Airways and Leo Sila Mutiso, the court found the delay inordinate and unexplained, the application a reaction to the dismissed ELC suit, and the intended appeal unsupported. Since the 5th Respondent had taken possession with no stay or appeal on record since 2012, granting the orders would prejudice him. The injunction was also refused because the 5th Respondent is the registered proprietor in undisputed possession. The application was dismissed with costs to the 5th Respondent on 22nd May 2018.

Key legal issues

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01

Whether enlargement of time to lodge an appeal should be granted after a delay of over four years

Holding

Application dismissed; the delay was inordinate and unexplained and the application was an afterthought

Reasoning

The court applied the Salat and Leo Sila Mutiso guidelines: length of delay, reason for delay, chances of appeal success and prejudice to the respondent. The applicant gave no explanation of steps taken after the April 2012 order, did not disclose the dismissed Nairobi ELC suit, and only moved in May 2016 after that suit failed. The 5th Respondent had taken possession with no stay or appeal on record, and would suffer prejudice if the orders were granted.

p. 3
02

Whether injunctive relief pending the intended appeal could issue against the 5th Respondent

Holding

Refused; the 5th Respondent is the registered proprietor in actual possession

Reasoning

The court found the prayer unwarranted at that juncture because the 5th Respondent's registered ownership and actual possession of the suit land were undisputed, and the applicant had not demonstrated a meritorious intended appeal.

p. 4

Legal principles established

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  • Extension of time is discretionary and must be exercised judicially, guided by the length of and reason for delay, chances of appeal success and prejudice to the respondent
  • An application for extension of time filed after inordinate, unexplained delay, prompted by an adverse outcome in parallel proceedings, is an afterthought and may be dismissed with costs

Court orders

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  1. 1.The Notice of Motion dated 6th May 2016 is dismissed
  2. 2.Costs of the application awarded to the 5th Respondent

Authorities

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Legislation

  • Civil Procedure Actsections 3, 3A and 95
  • Civil Procedure RulesOrder 42 rule 6(2); Order 42; Order 43 rule 1

Cases cited (11)

  • Nicholas Kiptoo Arap Salat Vs IEBC & 7 Others
    SC Application 16/2014
  • APA Insurance Ltd Vs Michael Kinyanjui Muturi
    Civil Appeal No. 354 of 2015
  • Edward Njane Nganga & Another Vs Damaris Wanjiku Kamau & Another
    Civil Appeal No. 8 of 2013
  • Kenya Airports Authority & Another Vs Timothy Nduvi Mutungi
    Court of Appeal Civil Application No. NAI 165 of 2013 (UR 113/2013) (2014) eKLR
  • City Chemist (Nbi) & Another Vs Oriental Bank Limited
    Civil Application No. Nai 302 of 2008 (UR 199/2008)
  • Nicholas Kiptoo Arap Korir Salat Vs the Independent Electoral and Boundaries Commission & 7 Others
    (2014) eKLR
  • Aviation Cargo Support Limited Vs St Mark Freight Services Limited
    (2014) eKLR
  • Paul Wanjohi Mathenge v Duncan Gichane Mathenge
    [2013] eKLR
  • Henry Mukora Mwangi -vs- Charles Gichina Mwangi
    Civil Application No. Nai. 26 of 2004
  • Mwangi -vs- Kenya Airways Ltd.
    [2003] KLR 486
  • Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi
    Civil Application No. Nai. 255 of 1997 (unreported)
Jurisdiction invoked
Sections 3, 3A and 95 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules (enlargement of time and stay pending intended appeal)

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, "Republic v County Government of Kajiado & 3 others Ex-parte Jackson Karanja Muhia [2018] KEELC 3267 (KLR)", Case Analysis (2018). Notice of Motion dated 6th May 2016 (Judicial Review proceedings re LR No. NGONG/NGONG TOWNSHIP BLOCK 2/350). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3267/eng@2018-05-22

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