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ELCDismissedNot stated in judgment (ELC suit at Kajiado)· [2020] KEELC 3473 (KLR)

Mintina Ene Keton Koponi (Suing as a legal representative of the estate of Keton Ole Koponi Parsena (Deceased) v Francis Njakwe Gathiari & 2 others [2020] KEELC 3473 (KLR)

Environment and Land Court
24 February 2020
1,641 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kajiado Environment and Land Court refused a defendant's attempt to appeal out of time, holding only the Court of Appeal can grant that permission.

What this practically means

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Executive summary

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This is a ruling on the 1st Defendant's Notice of Motion dated 14th August 2019, seeking leave to appeal out of time against a ruling of Lady Justice Christine Ochieng delivered on 29th July 2019, and stay of proceedings and of the orders of 29th July 2019 pending the intended appeal. The application was supported by affidavits of the instructing advocate, Makaba Winfred, and a pupil, Doreen Kawira, who explained that the initial application for leave was lost when her handbag was robbed at a bus stage at Cabanas. The Plaintiff/Respondent filed Grounds of Opposition, arguing that leave to appeal out of time to the Court of Appeal could only be granted by that court, and that stay was unavailable. The court framed two issues: whether leave to appeal out of time should be granted, and whether a stay pending appeal should issue. On the first issue, the court held that extension of time under Rules 4 and 75 of the Court of Appeal Rules lies exclusively to the Court of Appeal, and the Environment and Land Court was devoid of jurisdiction. On the second issue, applying Order 42 Rule 6(2) and the Global Tours & Travels criteria, the court found no Notice or Memorandum of Appeal had been filed to show arguability, an existing inhibition order already preserved the suit land, and a stay would hamper expeditious disposal. The application was found unmerited and disallowed in its entirety, with costs awarded to the Plaintiff. The judgment does not disturb the underlying 29th July 2019 ruling.

Key legal issues

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01

Whether the ELC may grant leave to appeal out of time against its own ruling

Holding

It may not; the power under Rule 4 of the Court of Appeal Rules vests exclusively in the Court of Appeal, so the court is devoid of jurisdiction.

Reasoning

Section 16 of the Environment and Land Court Act provides that appeals from the ELC lie to the Court of Appeal. Rule 75 sets timelines for filing an appeal and Rule 4 provides for extension of time. Both rules can only be invoked before the Court of Appeal itself. The court therefore declined the prayer for extension of time for want of jurisdiction.

p. 2
02

Whether a stay of proceedings pending the intended appeal should be granted

Holding

Stay refused; no Notice or Memorandum of Appeal was filed to demonstrate arguability, an inhibition order already protected the suit land, and a stay would hamper expeditious disposal.

Reasoning

Applying Order 42 Rule 6(2) and the Global Tours & Travels criteria, the court noted the applicant had not filed a Notice of Appeal or Memorandum of Appeal to show the intended appeal was arguable. Further, except for arresting the consent, an inhibition order already preserved the substratum of the suit, so no prejudice would result. The stay would also impede expeditious disposal of the case.

p. 3

Legal principles established

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  • The Environment and Land Court lacks jurisdiction to grant extension of time to lodge an appeal against its own decision to the Court of Appeal; only the Court of Appeal may do so under Rule 4 of the Court of Appeal Rules.
  • A stay of proceedings pending appeal is a matter of judicial discretion exercised in the interest of justice, weighing expeditious disposal, arguability of the intended appeal, judicial time and expedition of the application.

Court orders

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  1. 1.Prayer for extension of time/leave to appeal out of time declined for want of jurisdiction
  2. 2.Prayer for stay of proceedings pending appeal declined
  3. 3.Prayer for stay of the orders of 29th July 2019 declined
  4. 4.Application dismissed as unmerited
  5. 5.Costs awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 43 Rule 1(u); Order 42 Rule 6; Order 50 Rule 6; Order 51 Rule 1
  • Civil Procedure ActSection 3A; Section 65
  • Environment and Land Court ActSection 16
  • Court of Appeal Rules, 2010Rules 2, 4 and 75
  • Constitution of KenyaArticle 164(3)

Cases cited (4)

  • First American Bank of Kenya Ltd v Gulab P Shah & 2 others
    Nairobi (Milimani) HCCC No. 2255 of 2000 (2002) I EA 65
  • Nicholas Kiptoo Arap Korir Salat v the Independent Electoral and Boundaries Commission & 7 others
    (2014) eKLR
  • Edward Kamau & Another v Hannah Mukui Gichuki & Another
    (2015) eKLR
  • Global Tours & Travels Limited
    Nairobi HC Winding Up Cause No. 43 of 2000
Jurisdiction invoked
Order 43 Rule 1(u), Order 42 Rule 6, Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; sections 3A and 65 of the Civil Procedure Act

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, "Mintina Ene Keton Koponi (Suing as a legal representative of the estate of Keton Ole Koponi Parsena (Deceased) v Francis Njakwe Gathiari & 2 others [2020] KEELC 3473 (KLR)", Case Analysis (2020). Not stated in judgment (ELC suit at Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3473/eng@2020-02-24

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