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ELCDismissedEmbu Civil Case No. 314 of 2014 (Motion dated 17 July 2019)· [2019] KEELC 65 (KLR)

Janeffer Irumbi Nyagah v John Njoka Ngiri & another [2019] KEELC 65 (KLR)

Environment and Land Court (as per High Court-styled ruling at Embu)
19 December 2019
YAY.M. Angima
1,389 words in judgment
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The bottom line

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An Embu court refused a landowner's late appeal and stay of execution because she delayed without explanation, misled the court on dates, and two official surveys confirmed her encroachment.

What this practically means

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Executive summary

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This ruling by Y.M. Angima J at Embu determined a notice of motion dated 17 July 2019 brought under Order 42 Rule 6(1) and Order 50 Rule 6 of the Civil Procedure Rules, in which the Applicant sought leave to appeal out of time and a stay of execution of the judgment of M.N. Gicheru, Chief Magistrate, in Embu Civil Case No. 314 of 2014 delivered on 1 April 2019. The Applicant contended she had requested certified proceedings on 2 April 2019 but they were only supplied after the appeal period expired. The Respondents, through a replying affidavit by their advocate Mr. Njeru Ithiga, showed the request was actually made on 18 June 2019 and the application not filed until 7 August 2019, and accused the Applicant of being an indolent and misleading litigant. Applying the Mwangi v Kenya Airways Ltd factors (length of delay, reasons, chances of success and prejudice), the court found the delay of about 48 days in requesting proceedings, and a further unexplained delay in filing the application, inexcusable. The missing-court-file explanation first raised in a further affidavit was rejected as an afterthought lacking evidence. Notably, the trial court had referred the land boundary dispute to the Land Registrar Embu, whose report found the Applicant had encroached on the Respondents' parcel; a second survey by the Director of Surveys reached the same conclusion, and judgment was entered on those reports. The intended appeal was therefore found frivolous and fanciful, and the Applicant vexatious. The motion was dismissed in its entirety with costs to the Respondents.

Key legal issues

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01

Extension of time to appeal

Holding

Leave refused because the delay of 48 days in requesting proceedings and further delay to 7.08.2019 was unexplained and the Applicant attempted to mislead the court

Reasoning

The judgment was delivered on 1 April 2019 but the request for proceedings was stamped on 18 June 2019. The Applicant claimed she had applied on 2 April 2019, only to blame the registry in a further affidavit after the Respondents exposed the discrepancy. The court found the missing-file explanation an afterthought unsupported by any complaint letter to the court.

p. 2
02

Chances of success of the intended appeal

Holding

The intended appeal was frivolous and fanciful since both the Land Registrar and the Director of Surveys found the Applicant had encroached on the Respondents' land

Reasoning

The trial court had referred the boundary dispute to the Land Registrar Embu, whose report of 10 November 2016 found encroachment by the Applicant. On the Applicant's request a second survey by the Director of Surveys (report of 3 August 2018) reached the same conclusion, upon which judgment was entered. The court saw no possibility of a different appellate outcome.

p. 2
03

Prejudice to the Respondents

Holding

Granting the application would subject the Respondents to frivolous litigation by an indolent litigant who had also not paid trial costs

Reasoning

Having found inexcusable delay and a frivolous intended appeal, the court held it would be highly prejudicial to subject the Respondents to such litigation. It also noted the Applicant had not paid the Respondents' costs from the trial court proceedings.

p. 2

Legal principles established

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  • The factors for leave to appeal out of time are the length of delay, reasons for delay, chances of the appeal succeeding, and prejudice to the Respondent
  • On chances of success, the applicant need only show the appeal is arguable, not that it must succeed

Court orders

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  1. 1.The notice of motion dated 17.07.2019 is dismissed in its entirety
  2. 2.Costs of the application to the Respondents
On appeal from
Chief Magistrate's Court, Embu
Embu Civil Case No. 314 of 2014
Jurisdiction invoked
Order 42 Rule 6(1) and Order 50 Rule 6 of the Civil Procedure 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, "Janeffer Irumbi Nyagah v John Njoka Ngiri & another [2019] KEELC 65 (KLR)", Case Analysis (2019). Embu Civil Case No. 314 of 2014 (Motion dated 17 July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/65/eng@2019-12-19

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