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ELCDismissedNot stated in the ruling· [2021] KEELC 3670 (KLR)

Richard Kipmalel Chesimet v Nandi County Government (Environment & Land Case 99 of 2015) [2021] KEELC 3670 (KLR)

Environment and Land Court
12 April 2021
3,084 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret land court dismissed a bid to appeal months late, confirming that only the Court of Appeal can extend time and that blaming a lawyer won't excuse delay.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Eldoret determined the defendant/applicant's notice of motion dated 10th November 2020 seeking stay of execution of the judgment delivered on 6th May 2020, leave to file an appeal out of time, and deeming of an annexed notice of appeal as duly filed. The applicant blamed previous counsel's failure to communicate the judgment, invoked sections 79G and 95 of the Civil Procedure Act and section 7 of the Appellate Jurisdiction Act, and relied on Order 42 Rule 6 criteria for stay, alleging substantial loss of Kshs 30,000 per month in loss-of-earnings damages while not being in possession of the suit property. The respondent contended that the court lacked jurisdiction over leave to appeal out of time, that extension of time lies in the Court of Appeal under Rule 4, that no appeal had been filed, and that there was no imminent threat of execution. The court agreed with the respondent on jurisdiction: section 7 of the Appellate Jurisdiction Act empowers the High Court only to extend time for giving notice of intention to appeal from a High Court judgment, whereas the applicant sought leave to appeal out of time, a matter for the Court of Appeal under Rule 4. The leave limb was struck out. Obiter, the court found the 183-day delay unexplained, holding that mere blame of previous counsel is insufficient. Stay was refused because no appeal was pending. The application was dismissed with costs to the respondent.

Key legal issues

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01

Jurisdiction to grant leave to appeal out of time

Holding

The court has no jurisdiction; the applicant sought leave to appeal out of time rather than extension of time to file a notice of intention to appeal, and the proper forum is the Court of Appeal under Rule 4 of the Court of Appeal Rules

Reasoning

Section 7 of the Appellate Jurisdiction Act empowers the High Court only to extend time for giving notice of intention to appeal from a High Court judgment. The applicant instead sought leave to appeal out of time, which does not exist in appeals to the Court of Appeal. Rule 4 of the Court of Appeal Rules governs extension applications, and that discretion lies with the Court of Appeal. The application was therefore struck out for want of jurisdiction.

p. 4
02

Whether the delay was adequately explained

Holding

Obiter: had jurisdiction existed, the 183-day delay was unexplained; blaming previous counsel without evidence is insufficient

Reasoning

The application was filed 183 days after judgment. The applicant attributed the delay to previous counsel failing to communicate the judgment, but exhibited no correspondence or steps taken. Citing Annah Mwihaki Wairuru, the court noted an advocate is expected to be upright and dependable, and mere blame of counsel cannot excuse inordinate delay; reasonableness of delay is assessed case by case.

p. 5
03

Stay of execution pending appeal

Holding

Refused because no appeal is pending, so stay pending hearing and determination of an appeal is not tenable

Reasoning

Although the applicant invoked Order 42 Rule 6 requirements of substantial loss, no unreasonable delay and security, and alleged substantial loss of Kshs 30,000 per month loss-of-earnings damages, there was no filed appeal. An order of stay pending the hearing and determination of an appeal presupposes a pending appeal; absent one, such an order cannot issue.

p. 5

Legal principles established

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  • The High Court's power under section 7 of the Appellate Jurisdiction Act extends only to extension of time for giving notice of intention to appeal from a judgment of the High Court, not to granting leave to appeal out of time to the Court of Appeal; extension of time for lodging an appeal is a matter for the Court of Appeal under Rule 4 of the Court of Appeal Rules
  • Mere blame of previous counsel is not a sufficient explanation for undue delay in filing a notice of appeal or application
  • Stay of execution pending appeal cannot issue where no appeal is pending

Court orders

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  1. 1.The application for leave to file an appeal out of time is struck out with costs to the respondent
  2. 2.The application is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 (and Order 42 generally)
  • Civil Procedure Actsections 79G and 95
  • Appellate Jurisdiction Actsection 7
  • Court of Appeal RulesRule 4

Cases cited (14)

  • Kenya Airport Authority & another vs Timothy Nduvi Mutungi
    (2014) eKLR
  • Maree Ahmed & Another vs Leli Chaka Ndoro
    (2017) eKLR
  • Big Road Enterprises vs DHL Global Forwarding (K) Limited
    (2017) eKLR
  • Nicholas Kiptoo Salat vs Independent Electoral & Boundaries Commission & 7 Others
    SC pp No 16 of 2014
  • Lucas Mwita Machera & Another vs Gati Maroa Wangera & Another
    (2017) eKLR
  • Selestica Limited v Gold Rock Development Ltd
    [2015] eKLR
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    [2014] eKLR
  • STANDARD LTD vs GEKONGA and Others
    E.A REPORT (2005) IEA (CAK) at page 376
  • Trimborn Agricultural Engineering Limited v David Njoroge Kabaiko & another
    [2000] eKLR
  • Gabriel Kigi and others vs Kimotho Mwaura & another
    Civil Application No Nai 197 of 1997 (unreported)
  • Robinson & others vs Muthami
  • MUCHUNGI VS JAMES MUCHUNGI KIRAGU & ANOTHER
    [1998] eKLR
  • Annah Mwihaki Wairuru v Hannah Wanja Wairuru
    [2017] eKLR
  • George Mwende Muthoni vs Mama Day Nursery and Primary School, Nyeri
    CA No. 4 of 2014, (UR)
Jurisdiction invoked
Order 42 of the Civil Procedure Rules; sections 79G and 95 of the Civil Procedure Act; section 7 of the Appellate Jurisdiction Act (invoked by the applicant)

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, "Richard Kipmalel Chesimet v Nandi County Government (Environment & Land Case 99 of 2015) [2021] KEELC 3670 (KLR)", Case Analysis (2021). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3670/eng@2021-04-12

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