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ELCDismissedNot stated in judgment (Notice of Motion dated 14/12/2018 arising from Tigania PM ELC Case No. 56 of 2018)· [2019] KEELC 23 (KLR)

Genesio Mutwiri Mwereria v Augustus Kabira M’muraga [2019] KEELC 23 (KLR)

Environment and Land Court
11 December 2019
LMLucy N. Mbugua
1,063 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a Notice of Motion dated 14/12/2018 brought under Sections 1A, 1B, 3A and 79G of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, in which Genesio Mutwiri Mwereria sought leave to file an appeal out of time against the ruling of the Senior Resident Magistrate, Tigania, delivered on 11th October 2018 in Tigania PM ELC Case No. 56 of 2018. The applicant contended that he immediately requested and paid for a certified copy of the ruling, which was only availed after the time for appealing had expired. The respondent, Augustus Kabira M'Muraga, opposed the application, deponing that the ruling and proceedings were available for collection and the applicant simply failed to collect them, making the application an afterthought and an abuse of process that would prejudice him. The application was canvassed by written submissions, with the applicant relying on authorities on extension of time. The court identified a single issue: whether to grant leave to appeal out of time. Applying Section 79G and the factors in Mwangi v Kenya Airways Ltd, the court found the appeal should have been filed by 11/11/2018 and the application came over thirty days late. The applicant failed to demonstrate delay in preparing the proceedings or that a certificate of delay was sought, and, following AIG Insurance Company Limited v Michael Okoth, a certified copy of the ruling was not needed to file the appeal in any event. Noting the underlying suit was at an early but acrimonious stage, with both parties prejudiced by further delay, the court declined to exercise its discretion in the applicant's favour and dismissed the application with costs to the respondent.

Key legal issues

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Whether the applicant established good and sufficient cause under Section 79G of the Civil Procedure Act to warrant extension of time to appeal

Holding

The court found no good and sufficient cause; the delay was not explained, as the applicant neither demonstrated delay in preparation of proceedings nor requested a certificate of delay

Reasoning

The ruling was delivered on 11/10/2018, so the appeal was due by 11/11/2018, but the application was filed over thirty days past that deadline. Although the applicant's advocate wrote a day after delivery seeking a certified copy of the ruling, the applicant did not prove that proceedings were delayed or that a certificate of delay was sought. Moreover, a certified copy was unnecessary to institute the appeal, which requires only a memorandum of appeal under Order 42. The lower court suit remained at an early but acrimonious stage, and both parties stood to be prejudiced by further delay, so the discretion was not exercised in the applicant's favour.

p. 2

Legal principles established

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  • The decision whether or not to extend time for appealing is discretionary, considering the length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent
  • A certified copy of the ruling is not required to institute an appeal to the High Court, which is commenced by filing a memorandum of appeal

Court orders

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  1. 1.The Notice of Motion dated 14/12/2018 seeking leave to file an appeal out of time is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 1A
  • Civil Procedure Act (Cap 21)Section 1B
  • Civil Procedure Act (Cap 21)Section 3A
  • Civil Procedure Act (Cap 21)Section 79G
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 42

Cases cited (5)

  • Edward Njane Nganga & another v Damaris Wanjiku Kamau & another
    [2016] eKLR
  • Thuita Mwangi vs. Kenya Airways
    (2003) EKLR
  • Stanley Kahoro Mwangi & 2 Others vs. Kanyamwi Trading Company Limited
    (2015) EKLR
  • Mwangi v Kenya Airways Ltd
    [2003] KLR 486
  • AIG Insurance Company Limited v Michael Okoth
    [2018] eKLR
On appeal from
Senior Resident Magistrate's Court, Tigania
Tigania PM ELC Case No. 56 of 2018
Jurisdiction invoked
Sections 1A, 1B, 3A and 79G of the Civil Procedure Act (Cap 21) and Order 51 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Genesio Mutwiri Mwereria v Augustus Kabira M’muraga [2019] KEELC 23 (KLR)", Case Analysis (2019). Not stated in judgment (Notice of Motion dated 14/12/2018 arising from Tigania PM ELC Case No. 56 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/23/eng@2019-12-11

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