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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ELC may grant leave to appeal out of time against its own ruling
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.
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.
Whether a stay of proceedings pending the intended appeal should be granted
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.
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.
Legal principles established
#- 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
#- 1.Prayer for extension of time/leave to appeal out of time declined for want of jurisdiction
- 2.Prayer for stay of proceedings pending appeal declined
- 3.Prayer for stay of the orders of 29th July 2019 declined
- 4.Application dismissed as unmerited
- 5.Costs awarded to the Plaintiff
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.