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ELCDismissedNotice of Motion dated 12th June 2018· [2019] KEELC 2604 (KLR)

Kyanjau Co-operative Society Limited v Miriam Wanjiru Nganga [2019] KEELC 2604 (KLR)

High Court of Kenya
28 June 2019
1,968 words in judgment
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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 ruling on a Notice of Motion dated 12th June 2018 in which Kyanjau Co-operative Society Ltd, as Appellant/Applicant, sought leave under Section 79G of the Civil Procedure Act to file an appeal out of time against a Co-operative Tribunal judgment delivered on 17th October 2017 in Co-operative Tribunal Case No.382 of 2016. The Tribunal had ordered that the Respondent, widow and beneficiary of a deceased member, receive the ¼ acre offered by the Applicant and retain the small portion left after a church took over part of the land. The Applicant attributed the delay in appealing to the late availability of typed proceedings and to the need for its Board to meet in June 2018. The Respondent opposed, showing that certified copies were ready by 25th January 2018 and that the Applicant had known the judgment since October 2017. L. Gacheru J applied the established principles: whether the delay was inadvertent and excusable, whether it was inordinate, and whether the appeal had overwhelming chances of success. The court found the Applicant had not shown it requested proceedings promptly, gave no tangible reason for the Board's delay, and that the tribunal's award reflected the testimony of the Applicant's own Chairman that its Surveyor had allocated a swampy area. Leave was refused, the application was dismissed with costs to the Respondent, and the successful litigant was left to enjoy the fruits of her judgment.

Key legal issues

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01

Whether leave to appeal out of time under Section 79G of the Civil Procedure Act should be granted

Holding

Leave refused: the delay was inordinate and inexcusable and the appeal lacked overwhelming chances of success

Reasoning

Section 79G requires appeals from subordinate courts to be filed within thirty days, extendable on good and sufficient cause. The judgment was delivered on 17th October 2017, so time expired around 17th November 2017. The Applicant blamed unavailability of typed proceedings, but the certified copies were available by 15th/25th January 2018, and no letter showed an immediate request. No reasons were given why the Board could not meet sooner than June 2018.

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02

Whether the intended appeal was arguable with overwhelming chances of success

Holding

The appeal had no overwhelming chances of success because the tribunal's award mirrored the Applicant's own witness's testimony

Reasoning

The Applicant's Chairman had testified that its own Surveyor allocated the Claimant a swampy area, and that the society was willing to give two alternative plots. The tribunal's order that the Claimant receive the ¼ acre was therefore consistent with the evidence adduced by the Applicant's own witness and could not be faulted on appeal.

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Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party, and rules and timelines serve to make adjudication fair, just and certain

Court orders

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  1. 1.The Notice of Motion application dated 12th June 2018 is dismissed
  2. 2.Costs to the Respondent

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Section 79G
  • Co-operative Societies ActSection 81

Cases cited (2)

  • Imperial Bank Ltd (in receivership) & Another Vs Alnashir Propaf & Others
    Civil Appeal No.395 of 2017
  • Zacharia Okoth Obado Vs Edward Akongo & 2 Others
    (2014) eKLR
On appeal from
Co-operative Tribunal
Co-operative Tribunal Case No.382 of 2016
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Section 81 of the Co-operative Societies 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, "Kyanjau Co-operative Society Limited v Miriam Wanjiru Nganga [2019] KEELC 2604 (KLR)", Case Analysis (2019). Notice of Motion dated 12th June 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2604/eng@2019-06-28

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