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ELCDismissedNot stated in the judgment text provided· [2021] KEELC 3718 (KLR)

Shukri Isamil Jama v Mariam Mohamed & another [2021] KEELC 3718 (KLR)

Environment and Land Court of Kenya
14 April 2021
LMLucy N. Mbugua
1,507 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 confirmed that appeals filed over the Christmas court vacation are still on time, thanks to Order 50 Rule 4.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Meru (Lucy N. Mbugua, ELC Judge) determined two competing applications arising from an appeal against the judgment in Isiolo CM ELC No. 7 of 2011 delivered on 13th December 2018, in which the appellant lost. The 1st respondent sought striking out of the appeal for being filed out of time, while the appellant sought enlargement of time and deeming of her memorandum of appeal (filed 18th January 2019) and record of appeal. The central issue was whether the appeal, filed 35 days after judgment, fell within the 30-day window under Section 79G of the Civil Procedure Act. The court held that Order 50 Rule 4 of the Civil Procedure Rules excludes the Christmas vacation period (21st December to 13th January) from computation of time, following Gabriel Osimbo v Chrispinus Mandare as quoted in Francis Likhabila v Barclays Bank of Kenya. Excluding that period, the 30 days expired on 5th February 2019, meaning the memorandum of appeal filed on 18th January 2019 was filed well within time. Consequently, the appellant's application for enlargement of time was unnecessary and misplaced, and the 1st respondent's application to strike out was unmerited; both were dismissed, with each party bearing their own costs. Noting that the lower court file had been availed, the record of appeal filed and the appeal admitted on 9th July 2019, the court directed that the matter proceed to hearing.

Key legal issues

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01

Computation of the 30-day appeal period under Section 79G where the period falls within the court vacation

Holding

The Christmas recess period (21st December to 13th January) must be excluded, so the 30-day period expired on 5th February 2019 and the memorandum of appeal filed on 18th January 2019 was filed within time

Reasoning

Section 79G prescribes 30 days for filing an appeal from a subordinate court, but Order 50 Rule 4 of the Civil Procedure Rules governs the manner of computing time and excludes the vacation period. The judgment in the trial court was delivered on 13th December 2018; excluding 21st December 2018 to 13th January 2019, the 30 days expired on 5th February 2019. The memorandum filed on 18th January 2019 was therefore within time, and neither extension nor striking out was necessary.

p. 2

Legal principles established

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  • Order 50 Rule 4 of the Civil Procedure Rules excludes the period between 21st December and 13th January from computation of time for filing pleadings or doing any act, including the 30-day period under Section 79G of the Civil Procedure Act

Court orders

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  1. 1.The appellant's application dated 26.11.2019 seeking enlargement of time and deeming of the memorandum and record of appeal is dismissed as uncalled for and misplaced
  2. 2.The 1st respondent's application dated 30.7.2019 seeking to strike out the appeal is dismissed as unmerited
  3. 3.Each party to bear their own costs of the applications
  4. 4.The suit is ripe for hearing and the matter should proceed to hearing

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 50 Rule 4
  • Civil Procedure RulesOrder 42
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (5)

  • Diplack Kenya Limited v William Muthama Kitonyi
    [2018] eKLR
  • Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & Another
    [2018] eKLR
  • Apa Insurance Limited v Michael Kinyanjui Muturi
    [2016] eKLR
  • Francis Likhabila v Barclays Bank of Kenya
    [2020] eKLR
  • Gabriel Osimbo v Chrispinus Mandare
    [2020] eKLR
On appeal from
Chief Magistrate's Court, Isiolo
Isiolo CM ELC No. 7 of 2011
Jurisdiction invoked
Section 79G of the Civil Procedure Act (admission of appeal out of time) read with Order 50 Rule 4 of the Civil Procedure Rules; this being an appeal from a subordinate court

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, "Shukri Isamil Jama v Mariam Mohamed & another [2021] KEELC 3718 (KLR)", Case Analysis (2021). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3718/eng@2021-04-14

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