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ELCDismissedApplication dated 15 June 2015· [2018] KEELC 4354 (KLR)

Nakuru Packers Limited v Erick Njenga Watitu [2018] KEELC 4354 (KLR)

Environment and Land Court
27 February 2018
1,578 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court cannot extend time to file an appeal at the Court of Appeal, and only a properly substituted party can appear in a deceased litigant's case.

What this practically means

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Executive summary

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The applicant, son of the late Monica Nyambura Watitu (the original defendant), applied by notice dated 15 June 2015, invoking Order 43 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, for leave to lodge an application for leave to appeal out of time and proceed with an intended appeal against the ruling of Visram J of 29 September 2003, which had allowed the plaintiff's application for summary judgment and striking out of defence in a land dispute over LR No. 9035 Lanet, Nakuru. The underlying suit, filed in 2002, claimed vacant possession and damages for trespass; the deceased defendant had counterclaimed on the basis of adverse possession and a resulting trust, filed a Notice of Appeal in October 2003, obtained a conditional stay which lapsed, and was evicted. She died in 2011 and the applicant obtained limited grants ad litem in 2014. Counsel for the applicant reframed the application as founded on Section 75 of the Civil Procedure Act. The court (Munyao Sila J) held that Section 75 merely lists appealable orders and is irrelevant; the correct framework is the Appellate Jurisdiction Act and the Court of Appeal Rules. Section 7 of that Act limits the High Court's extension power to Notices of Appeal, and since the Notice was filed within time, only the Court of Appeal under Rule 4 could extend the 60-day period in Rule 82. Independently, the applicant, never having sought substitution under Order 24 for the deceased defendant, had no audience. The application was dismissed with costs.

Key legal issues

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01

Jurisdiction to extend time for filing an appeal to the Court of Appeal

Holding

The High Court/ELC lacks jurisdiction; only the Court of Appeal can extend the 60-day period under Rule 82

Reasoning

Section 7 of the Appellate Jurisdiction Act empowers the High Court only to extend time for giving notice of intention to appeal or applying for leave. The Notice of Appeal here was already filed within time; what was missing was the appeal itself, due within 60 days under Rule 82. Rule 4 vests discretion to extend Rule-limited periods in the Court of Appeal, which under Rule 2 means the Court of Appeal itself.

p. 2
02

Whether the applicant had audience as a stranger to the suit

Holding

No; not having applied for substitution under Order 24 following the death of the defendant, the applicant could not appear

Reasoning

The original defendant Monica Nyambura Watitu died on 9 August 2011. The applicant obtained limited grants ad litem but never applied for substitution under Order 24. Until such an application is made and allowed, a stranger cannot present himself in the proceedings, so the application would in any event fail.

p. 3
03

Relevance of Section 75 of the Civil Procedure Act to the application

Holding

Section 75 merely lists appealable orders and has no place in an extension-of-time application

Reasoning

Counsel for the applicant sought to rely on Section 75 of the Civil Procedure Act. The court held that the provision only lays down which orders are appealable; the proper framework for the relief sought (an out-of-time appeal to the Court of Appeal) is the Appellate Jurisdiction Act and the Court of Appeal Rules.

p. 2

Legal principles established

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  • The High Court's power to extend time under Section 7 of the Appellate Jurisdiction Act extends only to the filing of a Notice of Appeal, not the appeal itself; extension of time for filing the appeal lies with the Court of Appeal under Rule 4
  • A person who has not been substituted for a deceased litigant under Order 24 of the Civil Procedure Rules has no audience before the court and cannot present proceedings

Court orders

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  1. 1.The application dated 15 June 2015 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 43
  • Civil Procedure Act, Cap 21Section 3A
  • Civil Procedure Act, Cap 21Section 75
  • Appellate Jurisdiction Act, Cap 9Section 7
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 82
  • Court of Appeal RulesRule 2
  • Civil Procedure RulesOrder 24
Jurisdiction invoked
Order 43 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, Cap 21 (as relied on by the applicant); Sections 7 and 75 of the Civil Procedure Act; Sections 3 and 7 of the Appellate Jurisdiction Act Cap 9; Rules 2, 4 and 82 of the Court of Appeal Rules

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, "Nakuru Packers Limited v Erick Njenga Watitu [2018] KEELC 4354 (KLR)", Case Analysis (2018). Application dated 15 June 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4354/eng@2018-02-27

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