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ELCStruck OutELC Application dated 17th September 2019 (arising from ELC No. 198 of 2014)· [2020] KEELC 3317 (KLR)

Registered Trustees Church of God in East Africa v Fredrick Maenge Matara & 8 others [2020] KEELC 3317 (KLR)

Environment and Land Court
12 March 2020
AOA. Omollo
1,073 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court confirmed it cannot extend time to appeal to the Court of Appeal — only the Court of Appeal itself can, so the application was struck out.

What this practically means

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Executive summary

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The plaintiff/applicant moved the Environment and Land Court at Busia by a notice of motion dated 17th September 2019 under Sections 79G and 95 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking enlargement of time and leave to appeal out of time against the ruling of Hon. Justice A. K. Kaniaru delivered on 25th July 2019 in ELC No. 198 of 2014, which had dismissed his application dated 20/7/2018 with costs. The applicant contended that his advocates were never informed of the ruling date and only learned of it around 26th August 2019 when served with a Bill of Costs. The respondents opposed, asserting lack of jurisdiction, absence of a filed and served notice of appeal, incompetence, inordinate delay and abuse of process. The sole issue was whether the court had power to enlarge time to lodge an appeal to the Court of Appeal. The court found that Section 95 refers to the High Court or subordinate courts as defined in Section 2 of the Civil Procedure Act, and Section 79G governs appeals from subordinate courts to the High Court; extension of time for appeals to the Court of Appeal falls under Rule 4 of the Court of Appeal Rules and is a matter for that Court. Since only a draft notice of appeal was annexed, no notice of appeal having been lodged, the court held it lacked jurisdiction, struck out the application and awarded costs to the respondents.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction under Sections 79G and 95 of the Civil Procedure Act to enlarge time for filing an appeal to the Court of Appeal

Holding

It does not. Section 95 refers to the High Court or subordinate courts as defined in Section 2 of the Civil Procedure Act, while Section 79G governs appeals from subordinate courts to the High Court; extension of time for appeals to the Court of Appeal is governed by Rule 4 of the Court of Appeal Rules and lies with that Court.

Reasoning

The court analysed the statutory scheme: Section 2 defines 'Court' as the High Court or a subordinate court exercising civil jurisdiction, so Section 95 cannot confer power over Court of Appeal timelines. Section 79G concerns appeals from subordinate courts to the High Court. Rule 4 of the Court of Appeal Rules, not the Civil Procedure Act, governs extension for appeals to the Court of Appeal, and only that Court may exercise the discretion, particularly absent a lodged notice of appeal.

p. 2

Legal principles established

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  • The power to extend time to lodge an appeal to the Court of Appeal, where no notice of appeal was filed within the prescribed period, vests in the Court of Appeal under Rule 4 of the Court of Appeal Rules and not in the Environment and Land Court

Court orders

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  1. 1.Application struck out for want of jurisdiction
  2. 2.Costs to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure ActSection 2
  • Civil Procedure RulesOrder 51 Rule 1
  • Court of Appeal RulesRule 4
  • Constitution of KenyaArticle 159

Cases cited (5)

  • Wakaba Ndegwa & Ano Vs Lucy Nyaguthi
    (2017) eKLR
  • Teresa Mila Lopes versus Abdul Hasis Hajow and another
    Civil Appeal No.148 of 2014
  • Samuel Mwaura Muthumbi Vs Josephine Ngugi & Another
    (2018) eKLR
  • Jennifer Njuguna & Ano Vs Robert Gichuchi
    (2017) eKLR
  • Kinyunjuri Muguta Vs Wotuku Muguta
    (2018) eKLR
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules (jurisdiction challenged; court held it lacks jurisdiction to extend time for appeal to the Court of Appeal)

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, "Registered Trustees Church of God in East Africa v Fredrick Maenge Matara & 8 others [2020] KEELC 3317 (KLR)", Case Analysis (2020). ELC Application dated 17th September 2019 (arising from ELC No. 198 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3317/eng@2020-03-12

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