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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 4 (KLR)

Ruth Wakonyo Kabundu & another v Patrick Mukiri Kabundu [2019] KEELC 4 (KLR)

Environment and Land Court
28 February 2019
BEB M Eboso
1,557 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 gave a landowner more time to appeal because he never received notice of the ruling, but refused to pause the case itself.

What this practically means

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Executive summary

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The defendant, Patrick Mukiri Kabundu, applied by notice dated 15/3/2018 for leave to lodge an appeal against a ruling delivered by Gacheru J on 31/8/2017 dismissing his preliminary objection challenging the court's jurisdiction, for an extension of time to lodge the appeal, and for a stay of proceedings pending the intended appeal. He deposed that the ruling was delivered in the absence of all parties, that he was never served with a ruling notice, and that he only learned of it through a letter from the plaintiffs' advocates in January 2018. The plaintiffs opposed, contending the application was designed to delay the suit and that the applicant had slept on his rights. Eboso J set out the framework of Rule 75(1) and (2) of the Court of Appeal Rules, 2010 and Section 7 of the Appellate Jurisdiction Act, and applied the principles in Nicholas Kiptoo Arap Korir Salat v IEBC. Examining the record, the court found the ruling had been delivered in the absence of parties and counsel, there was no evidence of personal service of the ruling notice, the respondents did not controvert the applicant's ignorance of the ruling, and the coram did not support the judge's note that the defendant had been in court. The court held these circumstances warranted leave to appeal and extension of time, granting seven days to file and serve the notice of appeal. However, stay of proceedings was refused as premature, there being no demonstrated appeal steps and no imminent hearing. Costs of the application were made costs in the cause.

Key legal issues

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01

Whether leave to appeal out of time and extension of time should be granted

Holding

Leave and extension of time were granted because the ruling was delivered in the absence of the parties and without proof of service of the ruling notice, so the delay was adequately explained and no prejudice to the respondents was shown

Reasoning

The court found the ruling of 31/8/2017 was delivered in the absence of parties and advocates; there was no evidence of personal service of the ruling notice; the respondents did not controvert the applicant's claim of ignorance of the ruling; and the record lacked a coram supporting the judge's note that the defendant was present. On the Salat principles, the delay was explained and extension was warranted.

p. 2
02

Whether stay of proceedings should be granted

Holding

Stay was refused as premature

Reasoning

The court held that stay would be premature absent demonstrated steps towards an appeal, and since there was no imminent commencement of hearing of the suit, no stay was necessary at that point.

p. 2

Legal principles established

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  • No valid notice of appeal can be filed outside the 14-day period under Rule 75 of the Court of Appeal Rules without leave of the court
  • The High Court may extend time for giving notice of intention to appeal under Section 7 of the Appellate Jurisdiction Act notwithstanding expiry of the time

Court orders

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  1. 1.Leave granted to the applicant to appeal against the ruling of Gacheru J delivered on 31/8/2017
  2. 2.Extension of seven (7) days within which to file and serve a notice of appeal
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Limitation of Actions ActSection 27(2)
  • Appellate Jurisdiction ActSection 7
  • Court of Appeal Rules, 2010Rule 75(1) and (2)

Cases cited (3)

  • Carmella Wathugu Karigaca v Mary Nyokabi Kangaca
    [1997] eKLR
  • Mugo and others v Wanjiru & Anther
    CA 17 of 1969
  • Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission and Others
    Supreme Court Application 16 of 2014
On appeal from
Environment and Land Court (Nairobi)
Ruling of Gacheru J delivered 31/8/2017 in this suit
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act; Rule 75(1) and (2) of the Court of Appeal Rules, 2010

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, "Ruth Wakonyo Kabundu & another v Patrick Mukiri Kabundu [2019] KEELC 4 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4/eng@2019-02-28

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