Beatrice Malesi v Peter Ndiritu & Another (Environment & Land Case 76 of 2019) (Environment and Land) [2020] KEELC 3649 (KLR)
The bottom line
#A Kenyan court extended a landowner's appeal deadline because she was never properly notified that judgment had been delivered against her.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of over four months in filing the intended appeal was explained
The delay was sufficiently explained because no notice of delivery of judgment was given to the parties as required under Order 21 Rule 1 of the Civil Procedure Rules
Judgment was delivered on 24 December 2018 and the application filed on 8 May 2019, a delay of over four months. The Applicant only learned of the judgment when the 1st Respondent moved to subdivide the suit property. Judgment had been delivered in the absence of advocates for both parties, and a notice pinned outside the courtroom could not have apprised the parties. Accordingly, the delay was explained.
Whether the intended appeal raises arguable grounds
The appeal raises an arguable ground, an arguable appeal not being one which will necessarily succeed
The Applicant contends that the 2nd Respondent allocated her the suit property but later illegally subdivided it and sold it to another, who sold it to the 1st Respondent. These contested allegations of illegal subdivision raise an arguable ground of appeal, and the threshold is that the appeal be arguable, not that it succeed.
Whether the 1st Respondent would suffer prejudice if extension is granted
No prejudice would be suffered if the 1st Respondent's property and structures are on his own land
The 1st Respondent argued his plot is separate from the Applicant's and that the intended appeal had no arguable ground. The court reasoned that if his plot is indeed separate and he has constructed permanent structures on his own land, granting the Applicant leave to appeal would cause him no prejudice, weighing in favour of exercising discretion for the Applicant.
Legal principles established
#- In deciding whether to grant an extension of time the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the Respondent
- Where judgment is not delivered within 60 days of conclusion of trial, notice of delivery of judgment must be given to parties or their advocates; a notice pinned outside the courtroom does not amount to notice to the parties
Court orders
#- 1.The Applicant's application is allowed
- 2.The period for filing the appeal is extended by 14 days
- 3.Costs of the application shall be costs in the appeal
- On appeal from
- Milimani Commercial Court (Chief Magistrate's Court)
- Jurisdiction invoked
- Inherent discretion to extend time for filing an appeal; leave to appeal out of time under the Civil Procedure Rules (Order 21 Rule 1 cited on notice of judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Beatrice Malesi v Peter Ndiritu & Another (Environment & Land Case 76 of 2019) (Environment and Land) [2020] KEELC 3649 (KLR)", Case Analysis (2020). ELC Civil Misc App. No. 76 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3649/eng@2020-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.