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ELCPartially AllowedELC Case No. 81 of 2018 (Application dated 11th September, 2019)· [2020] KEELC 1054 (KLR)

Kithyo Kata & 2 others v Martin Mukosi Ngaa & another [2020] KEELC 1054 (KLR)

Environment and Land Court (High Court), Machakos
9 October 2020
1,704 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court excused a two-day delay in filing an appeal, confirming you don't need typed court proceedings before filing your memorandum of appeal.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Machakos (O.A. Angote, J) determined an application dated 11th September 2019 brought by the Defendants in Machakos CMCC ELC No. 81 of 2018 seeking enlargement of time to file a Memorandum of Appeal against a judgment delivered on 8th August 2019 in favour of the Plaintiffs. The application was anchored on Order 50 Rule 6 of the Civil Procedure Rules and Sections 3A and 79G of the Civil Procedure Act. The Applicants explained that the delay arose from awaiting typed proceedings, supplied on 3rd September 2019, and from a misapprehension that proceedings were required before lodging an appeal, compounded by the registry allegedly refusing to accept the memorandum on 9th September 2019. The Respondents opposed, contending the delay was unexplained, the appeal had minimal chances of success, and that they would be prejudiced. The court applied the well-known principles in Leo Sila Mutiso and Itute Ingu on extension of time: length of delay, reason for delay, arguability of the appeal and prejudice. It held that Section 79G does not require typed proceedings to file a memorandum of appeal, only time for extracting a certified decree being excluded. Finding the two-day delay not inordinate and excusable, and no prejudice demonstrated by the Respondents, the court allowed the application, enlarged time, deemed the Memorandum of Appeal dated 6th September 2019 properly filed and served, and ordered costs of the application to be in the cause. The judgment is dated 9th October 2020.

Key legal issues

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01

Whether the two-day delay in filing the Memorandum of Appeal should be excused

Holding

The delay of two days was not inordinate and the explanation was excusable; no prejudice to the Respondents was shown

Reasoning

Judgment was delivered on 8th August 2019 and the Memorandum of Appeal was filed on 12th September 2019. The court found the two-day delay not inordinate. The advocate's mistaken belief that typed proceedings were required explained the delay, and the Respondents did not demonstrate prejudice if the extension was granted.

p. 3
02

Whether typed proceedings are a prerequisite for filing an appeal under Section 79G

Holding

Typed proceedings are not required; only time taken to extract a certified Decree or Judgment is excluded

Reasoning

The court read Section 79G and held that the memorandum of appeal may be filed without proceedings. The only excluded time is that certified as requisite for preparation and delivery of a copy of the decree or order. The applicants' advocate laboured under a mistaken belief that typed proceedings were necessary.

p. 3

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 prejudice to the respondent
  • A party does not need typed proceedings to file a Memorandum of Appeal; only the time taken to extract a certified Decree or Judgment is excluded from computation of time

Court orders

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  1. 1.Time be and is hereby enlarged for the Applicants to file the Memorandum of Appeal out of time
  2. 2.The Memorandum of Appeal dated 6th September, 2019 be and is hereby deemed as having been properly filed and served on the Respondents
  3. 3.The costs of the Application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 50 Rule 3

Cases cited (3)

  • Pothiwalla vs. Kidogo Basi Housing Co-operative Society Limited & 31 Others
    (2005) KLR
  • Itute Ingu & Anor vs. Isumael Mwakavi Mwendwa
    (1994) eKLR
  • Leo Sila Mutiso vs. Rose Hellen Wangare Mwangi
    Civil Application No. NAI 255 of 1997 (ur)
On appeal from
Chief Magistrate's Court, Machakos
Machakos CMCC ELC No. 81 of 2018
Jurisdiction invoked
Sections 3A and 79G of the Civil Procedure Act 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, "Kithyo Kata & 2 others v Martin Mukosi Ngaa & another [2020] KEELC 1054 (KLR)", Case Analysis (2020). ELC Case No. 81 of 2018 (Application dated 11th September, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1054/eng@2020-10-09

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