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ELCDismissedNot stated in judgment (Bungoma ELC suit)· [2020] KEELC 3771 (KLR)

George Okimaru Iraru (as legal representative of the Estate of Habel Iraru Okimaru) v Margaret Welime Wanjala (as legal representative of the Estate of David Wanjala Welime) [2020] KEELC 3771 (KLR)

Environment and Land Court
23 January 2020
1,318 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 refused to revive a decades-old dispute because the appellant waited two years to act, showing that delays without strong reasons will kill an appeal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Bungoma (Olao J) determined a Notice of Motion dated 8th July 2019 by the Applicant, son of the late Habel Iraru Okimaru, seeking leave to file a Notice of Intention to appeal out of time against the ruling of the late Mukunya J delivered on 29th May 2017, by which the long-running land suit over parcel KAMUKUYWA SETTLEMENT SCHEME/NAITIRI/138 - originally filed on 30th December 1994 by the Applicant's father against the Respondent's deceased husband - was dismissed under Order 17 rule 2 of the Civil Procedure Rules for want of prosecution. The application, unopposed but considered on its merits, invoked Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Section 7 of the Appellate Jurisdiction Act. The court affirmed its jurisdiction to extend time for notice of appeal from courts of equal status to the High Court, citing Kenya Airports Authority v Timothy Duvi Mutungi, and applied the Fakir Mohammed test: length and reasons for delay, chances of success, prejudice, and public administration. The two-year delay was held inordinate and unexplained; the Applicant, present in court at dismissal, did not need typed proceedings to file a Notice of Appeal, and his claim of inability to pay Kshs 100,000 demanded by an advocate evidenced dilatory conduct. The draft memorandum was found to lack chances of success and any matter of public importance. The application was dismissed with no order as to costs.

Key legal issues

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01

Jurisdiction to extend time for filing a Notice of Appeal

Holding

The Court has jurisdiction under Section 7 of the Appellate Jurisdiction Act to extend time for giving notice of intention to appeal from a judgment of the High Court, including the Environment and Land Court

Reasoning

The court held that any doubt on this point was settled by the Court of Appeal in Kenya Airports Authority v Timothy Duvi Mutungi, confirming that courts of equal status to the High Court fall within the ambit of Section 7 of the Appellate Jurisdiction Act since 2010.

p. 1
02

Exercise of discretion in extension-of-time applications

Holding

The delay of two years was inordinate; the Applicant, who was present in court when the suit was dismissed, did not explain why he did not immediately file a Notice of Appeal, pointing to dilatory conduct

Reasoning

The court applied the Fakir Mohammed factors. The Applicant's explanation - inability to raise Kshs 100,000 demanded by an advocate for typed proceedings - was insufficient because a Notice of Appeal is a simple and mechanical task requiring no proceedings, and no other efforts were shown. The suit had already been dismissed more than once.

p. 2
03

Chances of success of the intended appeal

Holding

The draft memorandum of appeal disclosed no chances of success and no matter of public importance, the underlying suit having been dismissed on multiple previous occasions

Reasoning

The grounds of appeal alleged failure to consider relevant evidence and constitutional principles, yet the suit had already been dismissed for want of prosecution on 28th March 2017 and previously on 21st July 2009. The dispute arose over thirty years ago, and allowing the application would not serve the fair administration of justice.

p. 2

Legal principles established

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  • The Environment and Land Court has jurisdiction under Section 7 of the Appellate Jurisdiction Act to extend time for giving Notice of Intention to appeal from a judgment of the High Court or courts of equal status
  • In applications for extension of time the court considers the period and reasons for delay, chances of success, prejudice to the respondent, effect on public administration and other relevant factors
  • Extension of time is a discretionary remedy, not a right, and equity frowns upon indolent litigants

Court orders

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  1. 1.The Applicant's Notice of Motion dated 8th July 2019 seeking leave to file a Notice of Intention to appeal is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Appellate Jurisdiction ActSection 7
  • Civil Procedure RulesOrder 17 rule 2
  • Court of Appeal RulesRule 4

Cases cited (3)

  • Kenya Airports Authority & Another v Timothy Duvi Mutungi
    Civil Application No 165 of 2013 [2014] eKLR
  • Fakir Mohammed v Joseph Mugambi & Others
    Civil Application No 332 of 2004
  • Bi-Mach Engineers Ltd v James Kahoro Mwangi
    2011 eKLR
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act; Sections 1A, 1B, 3 and 3A 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, "George Okimaru Iraru (as legal representative of the Estate of Habel Iraru Okimaru) v Margaret Welime Wanjala (as legal representative of the Estate of David Wanjala Welime) [2020] KEELC 3771 (KLR)", Case Analysis (2020). Not stated in judgment (Bungoma ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3771/eng@2020-01-23

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