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ELCDismissedPetitioner's Notice of Motion dated 28th July 2020 (ruling of 7th July 2020 in the underlying petition)· [2021] KEELC 3072 (KLR)

Lucy Msigo Waita v National Land Commission & another [2021] KEELC 3072 (KLR)

Environment and Land Court
24 May 2021
CYC.K. Yano
1,789 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Mombasa Environment and Land Court refused a property owner's late request to appeal because she missed the 14-day deadline and blamed covid-19 after filing other documents on time.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (C.K. Yano, J) on the petitioner's Notice of Motion dated 28th July 2020 brought under Section 7 of the Appellate Jurisdiction Act and Section 75(1) of the Civil Procedure Act, seeking extension of time and leave to appeal to the Court of Appeal against the court's ruling of 7th July 2020 which dismissed her petition with costs after upholding the 2nd respondent's preliminary objection. The petitioner explained the delay by covid-19 restrictions, asserting her advocate could not file the leave application in time and that the intended appeal - concerning compensation money allegedly remitted but not paid to her - had chances of success. The 1st respondent opposed, contending the intended appeal disclosed no issues of law and questioning the petitioner's locus standi for want of letters of administration ad litem. The court framed a single issue: whether time should be extended and leave granted. Applying Order 43 Rule 3, leave ought to have been sought orally at delivery of the ruling or within 14 days (by 27th July 2020), yet the application was filed months later. The court, applying the Supreme Court's principles in Fahim Yasin Twaha, found the covid-19 excuse contradicted by the petitioner's filing of a Notice of Appeal in July 2020, concluded the application was an afterthought, and noted the absence of a draft memorandum of appeal demonstrating merit. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether the court should extend time and grant leave to appeal to the Court of Appeal

Holding

The application for extension of time and leave was dismissed as an afterthought and devoid of merit.

Reasoning

Leave under Section 75(1) CPC read with Order 43 Rule 3 should have been sought orally at delivery of the ruling or within 14 days (by 27th July 2020). The application was filed months later. The covid-19 explanation was contradicted by the petitioner's own filing of a Notice of Appeal in July 2020, showing knowledge of the process. No draft memorandum of appeal was attached to demonstrate a merited appeal, and the court weighed the strength of the intended appeal against the dismissal order.

p. 3
02

Whether covid-19 restrictions constituted reasonable cause for the delay

Holding

No - the excuse was contradicted by the petitioner's conduct.

Reasoning

The court noted that the petitioner managed to lodge a Notice of Appeal on 20th July 2020 during the same period, undermining the claim that the lockdown prevented filing. The real reason was that the petitioner mistook the procedure, filing a Notice of Appeal instead of an application for leave.

p. 2

Legal principles established

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  • Where leave to appeal is required, an application for leave shall in the first instance be made to the court making the order sought to be appealed from, orally at the time the order is made or within fourteen days
  • Extension of time is an equitable, discretionary remedy governed by the principles in Fahim Yasin Twaha, including the strength of the intended appeal and the burden on the applicant to lay a basis

Court orders

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  1. 1.The Notice of Motion dated 28th July 2020 is dismissed
  2. 2.Costs of the application to the 1st respondent

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
  • Civil Procedure ActSection 75(1)
  • Civil Procedure ActSection 1B(1)(c)
  • Civil Procedure RulesOrder 43 Rule 3
  • Law of Succession ActSection 45

Cases cited (1)

  • Fahim Yasin Twaha vs. Timamy Issa Abdalla & 2 Others
    [2015] eKLR
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act and Section 75(1) of the Civil Procedure Act; Order 43 Rule 3 of the Civil Procedure Rules

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, "Lucy Msigo Waita v National Land Commission & another [2021] KEELC 3072 (KLR)", Case Analysis (2021). Petitioner's Notice of Motion dated 28th July 2020 (ruling of 7th July 2020 in the underlying petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3072/eng@2021-05-24

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