Almer Farm Limited v National Land Commission & 2 others (Sued as Executrix of the estate of the late David Rono) [2021] KEELC 456 (KLR)
The bottom line
#The Environment and Land Court refused to extend time for Almer Farm to appeal a National Land Commission land decision, ruling the delay inexcusable and the wrong procedure an abuse of court process.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction to entertain an application for extension of time to appeal against a decision of the National Land Commission under the NLC (IHLI) Regulations, 2017
The Court has jurisdiction; Sections 95 of the Civil Procedure Act and Order 50 Rule 6 apply to periods fixed by law or court, and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act empower the Court; Section 3B does not exist
The Court reasoned that the Civil Procedure Act governs ELC procedure by virtue of Section 19(2) of the ELC Act. Sections 95 and Order 50 Rule 6 apply purposively to time fixed by law or by court. Even if inapplicable, that would not oust jurisdiction since Sections 1A, 1B, 3 and 3A empower the Court, and Article 159(2)(d) cures minor technicalities. The Court confirmed Section 3B does not exist in the statute.
Whether time should be extended to file the appeal against the Commission's decision of 7/2/2019
No; the delay was inexcusably inordinate, the explanation unsatisfactory, the respondents would be prejudiced, and the draft appeal disclosed nothing arguable
Applying the Thuita Mwangi factors and the Salat principles, the Court found counsel's 'inadvertent error' explanation untenable (ignorantia juris non excusat), especially as the Applicant persisted in judicial review after being alerted as early as 25/4/2019 that the wrong procedure had been used. The pursuit of the wrong path was deliberate and abusive of process.
Legal principles established
#- Where no express statutory bar exists, a party may apply for enlargement of time to appeal out of the statutorily prescribed period; the court retains discretion to extend time even where the regulations do not expressly provide for such an application
- Extension of time is a discretionary, equitable remedy available only to a deserving party who explains the delay
- Deliberate pursuit of a wrong procedure with knowledge of the correct one may amount to abuse of court process and disentitles a party to extension of time
Court orders
#- 1.The Miscellaneous Application dated 26/7/2021 is dismissed with costs to the 2nd and 3rd Respondents
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Section 19(2) of the Environment and Land Court Act; Article 159(2)(d) of the Constitution of Kenya 2010; National Land Commission (Investigation of Historical Land Injustices) Regulations, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Almer Farm Limited v National Land Commission & 2 others (Sued as Executrix of the estate of the late David Rono) [2021] KEELC 456 (KLR)", Case Analysis (2021). Miscellaneous Application dated 26/07/2021 (arising from NLC/HLI/112/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/456/eng@2021-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.