Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedMeru ELC Miscellaneous Application (application dated 17.10.2019, filed 18.10.2019)· [2020] KEELC 339 (KLR)

Joseph Mwirigi M’Ithiri v Solomon Gichuru Maugo [2020] KEELC 339 (KLR)

Environment and Land Court
14 December 2020
826 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to forgive a year-long appeal delay because waiting for certified court copies is not a valid excuse.

What this practically means

#

Executive summary

#
This was a notice of motion before the Environment and Land Court at Meru, sitting as a first-instance court, brought under Section 79G of the Civil Procedure Act and Order 50 Rule 6 and Order 42 Rule 6 of the Civil Procedure Rules. The applicant sought leave to appeal out of time against the judgment and decree of the Chief Magistrate in Meru CMCC No. 77 of 2016 delivered on 24 January 2018, together with a stay of execution pending the appeal. By a consent of 2 December 2019, the stay of execution was allowed while the court was to determine the extension-of-time issue. The applicant explained that he learned of the judgment only in August 2018 and received proceedings only in June 2019. The respondent opposed via a replying affidavit, noting that his application to execute had been allowed on 9 October 2019. The court applied Section 79G, requiring appeals from subordinate courts to be filed within thirty days, and adopted the principle from Fahim Yasin Twaha vs Timamy Issa Abdalla that extension of time is an equitable remedy, not a right, available only to a deserving party on a case-by-case basis. Following AIG Insurance Company Limited v Michael Okoth, the court held that an appeal is instituted by merely filing a memorandum of appeal, which need not await certified copies of the decree or proceedings. Finding the delay of more than one year unexplained, the court dismissed the application dated 17 October 2019 with costs to the respondent, and the consent stay of execution lapsed.

Key legal issues

#
01

Whether the applicant explained the delay in filing the appeal out of time

Holding

The delay of more than one year was not satisfactorily explained; the excuse of waiting for certified proceedings was a misconception of the law

Reasoning

Section 79G requires appeals from subordinate courts to be filed within thirty days of the decree, excluding certified time for copies. The applicant claimed ignorance of the judgment until August 2018 and non-supply of proceedings until June 2019, but under Order 42 a memorandum of appeal suffices without certified copies. The application was only filed on 18.10.2019, leaving over a year unexplained, so the equitable discretion could not be exercised in the applicant's favour.

p. 2
02

Nature of the discretion to extend time

Holding

Extension of time is not a right but an equitable remedy for a deserving party, considered case by case

Reasoning

Relying on Fahim Yasin Twaha vs Timamy Issa Abdalla & 2 Others [2015] eKLR, the court held that a party seeking extension bears the burden of laying a basis to the satisfaction of the court, and whether the discretion is exercised is decided case by case. The applicant's explanation failed to meet that burden.

p. 1

Legal principles established

#
  • Extension of time is an equitable remedy available at the court's discretion only to a deserving party, who must lay a basis for it
  • An appeal to the High Court under Order 42 of the Civil Procedure Rules is instituted by merely filing a memorandum of appeal, which need not be accompanied by a certified copy of the decree or order appealed against

Court orders

#
  1. 1.The application dated 17.10.2019 is dismissed with costs to the respondent
  2. 2.The consent order for stay of execution lapses

Authorities

#

Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (3)

  • Fahim Yasin Twaha vs Timamy Issa Abdalla & 2 Others
    [2015] eKLR
  • Genesio Mutwiri Mwereria vs Augustus Kabira M'Muraga
    Meru ELC Misc Appl No. 31 of 2018
  • AIG Insurance Company Limited v Michael Okoth
    [2018] eKLR
On appeal from
Chief Magistrate's Court, Meru
Meru CMCC NO. 77 OF 2016
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Order 50 Rule 6 and Order 42 Rule 6 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Joseph Mwirigi M’Ithiri v Solomon Gichuru Maugo [2020] KEELC 339 (KLR)", Case Analysis (2020). Meru ELC Miscellaneous Application (application dated 17.10.2019, filed 18.10.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/339/eng@2020-12-14

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