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ELCDismissed· [2021] KEELC 776 (KLR)

Leonard Kamenchu Kairiama v Elijah Maitai Ichicha & 2 others [2021] KEELC 776 (KLR)

Environment and Land Court
17 November 2021
1,611 words in judgment
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The bottom line

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The Environment and Land Court in Meru refused to extend time to appeal because the applicant hid when he learned of the judgment and showed no arguable appeal.

What this practically means

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Executive summary

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The applicant brought a notice of motion seeking extension of time to give, issue and serve a notice of appeal against an Environment and Land Court judgment delivered on 28.7.2021, contending his counsel was absent when judgment was delivered and it took time to obtain instructions. Supporting affidavits complained of lack of notice of delivery but were silent on when counsel and the applicant learned of the judgment. The respondents opposed, asserting notice of delivery was served by email and via the Meru Bar/Bench WhatsApp page, and that the application was based on falsehood and meant to delay the matter. The court first established jurisdiction, holding that although the motion and submissions invoked Rule 4 of the Court of Appeal Rules, that Rule is irrelevant to the High Court; Section 7 of the Appellate Jurisdiction Act confers power to extend time. On the merits, the court found the 12-day delay beyond the 30-day period not inordinate, but held the reasons insufficiently explained since a letter of 12.8.2021 showed counsel knew of the judgment 14 days before the deadline, and the deponents were economical with the truth. No draft memorandum of appeal was attached; the intended appeal concerned a preliminary objection on exhaustion of dispute mechanisms under the Land Adjudication Act and Land Consolidation Act. Weighing the overriding objective, Article 159(2)(c), prejudice to public administration of land adjudication, and absence of public importance, the court dismissed the application with costs.

Key legal issues

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01

Jurisdiction of the High Court to extend time for notice of appeal

Holding

The court has jurisdiction under Section 7 of the Appellate Jurisdiction Act notwithstanding the parties' reliance on Rule 4 of the Court of Appeal Rules

Reasoning

Although the motion cited no section of law and parties relied on Rule 4 of the Court of Appeal Rules, the court held substantive justice prevails over procedural technicalities and that Section 7 of the Appellate Jurisdiction Act empowers the High Court to extend time for giving notice of intention to appeal from its own judgment.

p. 1
02

Explanation for the delay

Holding

The delay of 12 days beyond the 30-day period was not inordinate, but the reasons given were insufficient because the deponents concealed when the applicant learned of the judgment

Reasoning

The letter dated 12.8.2021 seeking a copy of the judgment showed counsel knew of delivery about 14 days after delivery, 14 days before the deadline. The supporting affidavits were evasive on when knowledge was acquired and instructions given, so the court found the delay unexplained to its satisfaction.

p. 2
03

Chances of success of the intended appeal

Holding

No draft memorandum of appeal was attached and no exceptional technical legal issues were demonstrated; the issue below was a preliminary objection on law concerning exhaustion of land adjudication dispute mechanisms

Reasoning

The intended appeal concerned jurisdiction to entertain a claim arising from an Arbitration Board decision without exhausting mechanisms under Section 29(1) of the Land Adjudication Act and Section 26(3) of the Land Consolidation Act. The High Court had held a DLASO consent could not confer jurisdiction. No exceptional circumstances justified bypassing ADR mechanisms.

p. 2
04

Prejudice and public interest

Holding

Granting extension would delay the land adjudication process to the detriment of parties and public administration; land disputes must be settled timely and orderly

Reasoning

The dispute arose from a statutory arbitration board under the Land Adjudication Act. Public policy under Article 159(2)(c) and Sections 1A and 1B of the Civil Procedure Act favours ADR and efficient resolution. The delay would impact public administration of the adjudication process and raise no issue of public importance.

p. 2

Legal principles established

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  • The High Court has jurisdiction under Section 7 of the Appellate Jurisdiction Act to extend time for giving notice of appeal from its own judgment
  • Rule 4 of the Court of Appeal Rules has no relevance to the High Court when exercising its power to extend time to give a notice of appeal
  • Jurisdiction is conferred only by the Constitution or statute, not by consent

Court orders

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  1. 1.The notice of motion seeking extension of time to give, issue and serve a notice of appeal is dismissed with costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
  • Court of Appeal RulesRule 4
  • Constitution of KenyaArticle 159 2 (c)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Land Adjudication ActSection 29 (1)
  • Land Consolidation ActSection 26 (3)
  • Land Registration Act 2012Section 26

Cases cited (7)

  • Karny Zaharwa & Another -vs- Shalon Levi
  • Nusura Juma -vs- Afwa Mohammed Ramadhan
  • Abdul Azizi Ngoma -vs- Mungai Mathayo
    [1976] KLR 62
  • Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral & Boundaries Commission & 7 Others
    [2014] eKLR
  • Laban Masinjila -vs- County Government of Kakamega
    [2021] eKLR
  • Kenya Airports Authority & Another -vs- Timothy Nduvi Mutungi
    [2014] eKLR
  • Stanley Kaboro Mwangi & 2 Others -vs- Kanyamwi Trading Co. Ltd.
    [2015] eKLR
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act Cap 9

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, "Leonard Kamenchu Kairiama v Elijah Maitai Ichicha & 2 others [2021] KEELC 776 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/776/eng@2021-11-17

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