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ELCPartially AllowedNotice of Motion dated 1st March, 2018· [2019] KEELC 2271 (KLR)

Joseph Gikunda Kiara v Rafiki Micro Finance Bank Ltd & another [2019] KEELC 2271 (KLR)

Environment and Land Court
19 July 2019
OAO. A. Angote
1,105 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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By a Notice of Motion dated 1st March, 2018, the Plaintiff sought enlargement of time to file a Notice of Appeal against a Ruling of the Environment and Land Court (Angote J) delivered on 2nd November, 2017, which had dismissed his application to restrain the 1st Defendant, a lender, from selling charged land L.R. No. 12715/12184 over a Kshs. 8,000,000 facility. The Plaintiff deponed that the ruling was delivered without notice to his advocate, that he only learnt of it on 20th February, 2018 when valuers visited the suit land, and that he had an arguable appeal. The 1st Defendant opposed, contending the application fell short of legal standards, that the Plaintiff had not come to court with clean hands, and that the suit was made in bad faith to defeat its statutory power of sale. The court found that although the Deputy Registrar had notified advocates of the rescheduled ruling date by email, neither party's advocates received the notification, and the ruling was delivered in the absence of all parties and counsel. Holding that the notice of delivery was not personally served on the Plaintiff's advocate, the court found the delay of about four months not unreasonable and noted the Plaintiff's constitutional right to be heard on appeal, finding he would be prejudiced if the extension were denied. The application was allowed: time for filing the Notice of Appeal was enlarged, leave to appeal out of time was granted, the Notice of Appeal was to be filed within fourteen days, and each party was to bear their own costs.

Key legal issues

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01

Extension of time to file Notice of Appeal under Section 7 of the Appellate Jurisdiction Act

Holding

The application was allowed; time enlarged and leave granted to file the Notice of Appeal out of time

Reasoning

The court found that notice of the rescheduled ruling date was sent by email by the Deputy Registrar but was not received by either party's advocates, and the ruling was delivered in the absence of all parties and counsel. The court held that since notice was not personally served on the Plaintiff's advocate, the Plaintiff laid a basis for failing to file the Notice of Appeal within fourteen days. The application was filed within four months, which the court found not to be unreasonable delay, and refusal would prejudice the Plaintiff's constitutional right of appeal.

p. 2

Legal principles established

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  • Where a ruling is delivered in the absence of the parties without personal service of notice of the delivery date, an applicant who files an extension application within a few months has explained the delay and should not be denied the constitutional right of appeal

Court orders

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  1. 1.Time within which the Plaintiff ought to file the Notice of Appeal against the Ruling delivered on 2nd November, 2017 enlarged
  2. 2.Leave granted to the Plaintiff to file his Notice of Appeal out of time
  3. 3.Plaintiff to file his Notice of Appeal within fourteen (14) days of the date of the Ruling
  4. 4.Each party to bear his/its own costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act

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, "Joseph Gikunda Kiara v Rafiki Micro Finance Bank Ltd & another [2019] KEELC 2271 (KLR)", Case Analysis (2019). Notice of Motion dated 1st March, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2271/eng@2019-07-19

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