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ELCAllowedNot stated in judgment (Notice of Motion dated 23rd April 2020)· [2020] KEELC 2106 (KLR)

Judith Walekhwa v Ronald Olunga & 2 others [2020] KEELC 2106 (KLR)

Environment and Land Court
4 June 2020
1,183 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 allowed a landowner to appeal late, accepting covid-19 court disruptions as a valid reason for the delay.

What this practically means

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Executive summary

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This ruling by Olao J of the Environment and Land Court at Bungoma determines the Applicant's unopposed Notice of Motion dated 23rd April 2020 seeking extension of time to apply for leave to appeal, leave to appeal, extension of time to give Notice of Appeal, and deeming of a Notice of Appeal filed on 22nd April 2020, following the Court's judgment of 12th March 2020 dismissing her adverse possession claim over land parcels Bungoma/Kamakoiwa/1314, 1315 and 1316. The Respondents, though duly served, filed no response. The Court confirmed jurisdiction under Section 7 of the Appellate Jurisdiction Act, holding that the reference to the High Court includes the Environment and Land Court after the 2010 Constitution. Applying the Salat principles, the Court found the one-week delay in instructing counsel unexplained but accepted counsel's explanation that the covid-19 pandemic's scaling down of court operations caused the filing delay. Since the Applicant remains in occupation of the suit land and the Respondents are not, no prejudice would flow from the extension. The Court allowed the application, deemed the Notice of Appeal properly filed and served, directed that the Memorandum of Appeal be filed and served within 30 days, and made no orders as to costs. The underlying merits of the appeal were not determined; the ruling is procedural, granting the Applicant an opportunity to pursue her appeal.

Key legal issues

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01

Whether the delay in seeking leave to appeal was properly explained

Holding

The delay of a week in instructing counsel was unexplained, but counsel's explanation that the delay in filing was due to scaling down of Court operations during the covid-19 pandemic was accepted as reasonable.

Reasoning

Judgment was delivered in the presence of the Applicant's counsel, so the court assumed the outcome was relayed to her; she did not explain the week's delay in giving instructions. However, counsel explained the filing delay by reference to the covid-19 pandemic scaling down of court operations, which the court accepted as a matter of public knowledge and not unreasonable delay.

p. 2
02

Whether extension of time would prejudice the Respondents

Holding

No prejudice would result because the Applicant remains in occupation of the suit land and the Respondents are not in occupation.

Reasoning

The court noted the dispute concerns ownership of land which the Applicant occupies, though her occupation did not meet the adverse possession threshold. Since the Respondents are not in occupation, extension of time causes them no prejudice, and it was in the interest of justice to allow the appeal to be pursued, particularly as the application was unopposed.

p. 2

Legal principles established

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  • The power to grant leave to file an appeal out of time is discretionary, guided by the Salat principles: extension of time is an equitable remedy, delay must be explained, and prejudice to the other party considered.
  • The reference to the High Court in Section 7 of the Appellate Jurisdiction Act includes the Environment and Land Court following the promulgation of the 2010 Constitution.

Court orders

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  1. 1.The Notice of Appeal filed herein be deemed as properly filed and served
  2. 2.The Memorandum of Appeal be filed and served within 30 days from the date of this ruling
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A, 75
  • Civil Procedure RulesOrder 50 rule 6; Order 51 rule 1
  • Appellate Jurisdiction ActSection 3A; Section 7
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (1)

  • NICHOLAS KIPTOO ARAP KORIR SALAT .VS. I.E.B.C & OTHERS
    S.C Application No 16 of 2014
Jurisdiction invoked
Sections 1A, 3A and 75 of the Civil Procedure Act, Orders 50 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, Section 3A of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution

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, "Judith Walekhwa v Ronald Olunga & 2 others [2020] KEELC 2106 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 23rd April 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2106/eng@2020-06-04

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