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ELCDismissedELC CASE NO. 13 OF 2017 (Application dated 2nd September 2020)· [2020] KEELC 462 (KLR)

Makembo Kaya Kimemia v Silas Nyaga & 6 others [2020] KEELC 462 (KLR)

Environment and Land Court
2 December 2020
1,265 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a bid to appeal late, ruling Covid-19 could not excuse a delay that started four months before the pandemic.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 2nd September 2020 by Makembo Kaya Kimemia, the plaintiff in Chuka ELC Case No. 13 of 2017, seeking certification as urgent, leave to file a Notice of Appeal out of time, and extension of time to file all documents for an intended appeal to the Court of Appeal against the judgment delivered on 21st November 2019. The application, supported by the applicant's affidavit, cited the Covid-19 pandemic, the delivery of judgment in the absence of the applicant's advocates, and the late supply of proceedings and judgment (July 2020) as reasons for the delay, and asserted that the proposed appeal had high chances of success with no prejudice to the respondents. The applicant relied on the classic principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi on extension of time. The respondents filed grounds of opposition contending that the application did not meet the threshold and that the reasons for delay did not warrant the exercise of discretion. The court (P. M. Njoroge, J) rejected the application, holding that the appeal period lapsed on or around 20th December 2019, almost four months before the Covid-19 pandemic disrupted court operations, so the pandemic could not excuse the applicant's indolence. It further held that the absence of an advocate at the delivery of judgment has never been a ground for extension of time. The application was dismissed in its entirety and costs awarded to the respondents.

Key legal issues

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01

Whether the Covid-19 pandemic justified the delay in filing the Notice of Appeal

Holding

The delay was not attributable to the pandemic; the period for filing appeals lapsed around 20th December 2019, about four months before the pandemic affected court operations

Reasoning

The judgment sought to be appealed was delivered on 21st November 2019, and the window for filing an appeal closed on or around 20th December 2019. The Covid-19 pandemic only disrupted court operations in Kenya around March/April 2020, roughly four months later. The court therefore found that the applicant's delay was a product of indolence rather than the pandemic, and the excuse advanced failed on the facts.

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02

Whether the absence of the Applicant's advocates at the delivery of judgment warranted extension of time

Holding

No; judgments are delivered in open court on appointed days whether advocates are present or not, and absence of an advocate has never been an excuse for extension of time

Reasoning

The applicant argued that judgment was delivered in the absence of advocates on record. The court held that judgments are routinely delivered in open court on the appointed date regardless of whether counsel attend, and that an advocate's absence does not constitute a ground for excusing delay or extending time within which to lodge an appeal. This ground therefore also failed to justify the exercise of the court's discretion in the applicant's favour.

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03

Whether the delay in supplying proceedings and judgment (due to Covid-19) excused the delay

Holding

Although proceedings and judgment were only supplied in July 2020 due to the pandemic, this did not excuse the failure to file the Notice of Appeal within the statutory period

Reasoning

The applicant explained that she applied personally for proceedings and judgment, which were supplied only in July 2020 because of the pandemic. However, the court's analysis focused on the lapse of the appeal period in December 2019, long before the pandemic. The court did not treat the late supply of certified proceedings as curing the failure to file a Notice of Appeal within the statutory thirty-day window, and dismissed the application accordingly.

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Legal principles established

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  • In deciding whether to extend time for appealing, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent
  • The absence of an advocate when a judgment is delivered is not a basis for extension of time to appeal

Court orders

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  1. 1.The application dated 2nd September 2020 is dismissed with the result that all orders applied for are denied
  2. 2.Costs are awarded to the respondents

Authorities

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Legislation

  • Appellate Jurisdiction ActRule 7, Cap. 7 Laws of Kenya
  • Civil Procedure RulesOrder 51(1)

Cases cited (2)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. Nai. 255 of 1997 (unreported)
  • Stanley Kaiyongi Mwenda vs Cyprian Kubai
    [2000] eKLR
Jurisdiction invoked
Rule 7 of the Appellate Jurisdiction Act Cap. 7 Laws of Kenya and Order 51(1) 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, "Makembo Kaya Kimemia v Silas Nyaga & 6 others [2020] KEELC 462 (KLR)", Case Analysis (2020). ELC CASE NO. 13 OF 2017 (Application dated 2nd September 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/462/eng@2020-12-02

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