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ELCAllowedELC Miscellaneous Application arising from Notice of Motion dated 10th September 2021 (referencing Milimani Commercial Courts Civil Suit No. 3111 of 2018)· [2021] KEELC 875 (KLR)

Francis G Manyara v Richard Muracha [2021] KEELC 875 (KLR)

Environment and Land Court
19 November 2021
2,465 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court gave a litigant a second chance to appeal despite a long delay, but struck out the other side's late affidavit for ignoring court directions.

What this practically means

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Executive summary

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The applicant, Francis G. Manyara, moved the Environment and Land Court by notice of motion dated 10th September 2021 under Order 51 of the Civil Procedure Rules and Sections 1A, 1B, 3, 3A, 63(e) and 79G of the Civil Procedure Act, seeking extension of time by 14 days to file a memorandum and record of appeal against the judgment of Hon G. Mmasi (Mrs) SPM delivered on 2nd October 2019 in Milimani Commercial Courts Civil Suit No. 3111 of 2018, together with associated deeming and direction orders. He attributed the delay of over one year and nine months to medical conditions requiring hospitalisation since 2019. The respondent opposed through a replying affidavit, prompting two issues: whether that affidavit, filed out of time without leave on 5th November 2021, should be struck out; and whether leave to appeal out of time should issue. Disallowing the affidavit for prejudice and non-compliance with directions, the court then applied the Salat principles and related Court of Appeal authorities. Although the delay was inordinate, it was explained by the applicant's medical condition and the draft memorandum disclosed an arguable case. The application was allowed: the applicant was to file and serve a notice of appeal within 14 days and a record of appeal within 30 days, failing which the orders would lapse; each party was to bear its own costs of the application.

Key legal issues

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01

Striking out of the respondent's replying affidavit filed out of time

Holding

The replying affidavit was disallowed as it was filed out of time and without leave, and the applicant would be greatly prejudiced as he would have no opportunity to respond

Reasoning

Directions on filing submissions had been issued on 23rd September and 12th October 2021, and the respondent's counsel had sought and been granted ample time, confirming willingness to file within three days. Court directions should be complied with absent exceptional and compelling reasons. Counsel did not seek leave to deem the affidavit duly filed. Allowing it would prejudice the applicant who had no opportunity to respond.

p. 2
02

Whether to grant leave to file an appeal out of time

Holding

Extension of time was granted despite an inordinate delay of over one year and nine months, the delay being explained by the applicant's medical condition, and the draft memorandum of appeal revealing an arguable case

Reasoning

Applying the Salat principles, the court weighed the length and reason for the delay against prejudice to the respondent. The delay was inordinate but explained by the applicant's medical condition, amounting to extenuating circumstances. The draft memorandum set out an arguable case with possibility of success, and the applicant should not be denied access to the seat of justice. Discretion was exercised in the applicant's favour subject to strict timelines and lapse in default.

p. 3

Legal principles established

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  • Extension of time is an equitable remedy, not a right, available to a deserving party at the discretion of the court, dependent on reasons for delay, prejudice and other factors
  • The statutory time limit under Section 79G cannot be waived by parties; delay is inexcusable unless sufficient cause is shown and the respondent is not prejudiced
  • A court may allow an out-of-time affidavit or evidence where no undue prejudice is caused to the other party, guided by Article 159(2)(d) of the Constitution

Court orders

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  1. 1.Extension of time granted for filing of the appeal
  2. 2.The applicant to file and serve a notice of appeal within 14 days from the date of the ruling
  3. 3.The applicant to compile, file and serve the record of appeal within 30 days from the date thereof
  4. 4.In default of compliance with (i) and (ii), the orders issued to automatically lapse
  5. 5.Each party to bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 51
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e), 79G, 95
  • Environment and Land Court ActSection 16A
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (6)

  • Raila Odinga & 5 Others vs IEBC & 3 Others
    Supreme Court of Kenya, Petitions Nos. 3, 4 and 5 of 2013 (2013) eKLR
  • Salat v Independent Electoral & Boundaries Commission & 7 others
    [2014] eKLR-SCK
  • Paul Wanjohi Mathenge v Duncan Gichane Mathenge
    [2013] eKLR
  • Henry Mukora Mwangi v Charles Gichina Mwangi
    Civil Application No. Nai 26 of 2004
  • Mwangi v Kenya Airways Ltd.
    [2003] KLR 486
  • Leo Sila Mutiso vs Rose Hellen Wangari Mwangi
    Civil Application No Nai. 255 of 1997 (unreported)
On appeal from
Chief Magistrate's Court, Milimani Commercial Courts
Civil Suit No. 3111 of 2018
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act and Section 16A of the Environment and Land Court Act (discretionary jurisdiction to extend time)

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, "Francis G Manyara v Richard Muracha [2021] KEELC 875 (KLR)", Case Analysis (2021). ELC Miscellaneous Application arising from Notice of Motion dated 10th September 2021 (referencing Milimani Commercial Courts Civil Suit No. 3111 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/875/eng@2021-11-19

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