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ELCOtherBusia HC ELC Civil Case No. 153 of 2014 (O.S)· [2021] KEELC 3725 (KLR)

Beatrice Okumu Omonya & another v Rasomo Osilingi Omunyongor [2021] KEELC 3725 (KLR)

High Court of Kenya (Environment and Land Court)
14 April 2021
AOA. Omollo
763 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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The High Court cannot extend your time to file an appeal notice - only the Court of Appeal can, so file your application there, not at the trial court.

What this practically means

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Executive summary

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The defendant/applicant, Rasomo Osilingi Omunyongor, moved the High Court at Busia by a notice of motion dated 11th September 2020, brought under sections 1, 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 1 and Order 51 of the Civil Procedure Rules, seeking an extension of time to file a Notice of Appeal against the judgment of the Environment and Land Court at Busia (A. Omollo, J) delivered on 29th April 2020 in ELC Civil Case No. 153 of 2014 (O.S). He explained that judgment was delivered during the Covid-19 partial lockdown; that he is an elderly peasant farmer without internet access and was ill; that he only learnt of the judgment on 2nd September 2020; and that execution of the judgment threatened his eviction from L.R No. NORTH TESO/ANGOROMO/474, his home of over 50 years. The plaintiffs opposed via grounds of opposition filed on 21st October 2020, contending that there were no sufficient grounds, that the delay was inordinate, and that the Court lacked jurisdiction to grant prayer 3, which falls under Rule 4 of the Court of Appeal Rules. The Court agreed, holding that Rule 4 of the Court of Appeal Rules vests the power to extend time for filing a Notice of Appeal in the Court of Appeal alone, citing Loise Chemutai Ngurule, KENHA v Joseph Ndolo Mutua and Leo Sila Mutiso. The Court declined jurisdiction and struck out prayer 3 with costs to the plaintiffs/Respondents.

Key legal issues

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01

Jurisdiction to extend time for filing a Notice of Appeal

Holding

The High Court lacks jurisdiction to grant extension of time for filing a Notice of Appeal against its own judgment; that power vests exclusively in the Court of Appeal under Rule 4 of the Court of Appeal Rules.

Reasoning

The applicant was required to file a Notice of Appeal within 14 days of the decision. Rule 4 of the Court of Appeal Rules empowers the Court of Appeal itself to extend time limited by its Rules. An application to extend time for filing a Notice of Appeal is therefore properly brought before the Court of Appeal, and this Court, on an application anchored in the Civil Procedure Act, cannot self-confer jurisdiction it does not have. The prayer was accordingly struck out with costs.

p. 2

Legal principles established

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  • A court exercising its discretion cannot confer jurisdiction upon itself to extend time where there is no statutory provision granting it such powers; extension of time for filing a Notice of Appeal is a matter for the Court of Appeal under Rule 4 of the Court of Appeal Rules.

Court orders

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  1. 1.Prayer 3 of the application (extension of time for filing the Notice of Appeal) struck out
  2. 2.Costs of the application awarded to the plaintiffs/Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A and 63(e)
  • Civil Procedure RulesOrder 1 and Order 51
  • Court of Appeal Rules (Cap 9)Rule 4
  • Court of Appeal RulesRule 3

Cases cited (3)

  • Loise Chemutai Ngurule Vs Winfred Kimung'en & 2 others
    (2015) eKLR
  • KENHA Vs Joseph Ndolo Mutua
    (2020) eKLR
  • Leo Sila Mutiso Vs Hellen Wangari Mwangi
    (1999) 2 EA 231
Jurisdiction invoked
Sections 1, 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 1 & Order 51 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, "Beatrice Okumu Omonya & another v Rasomo Osilingi Omunyongor [2021] KEELC 3725 (KLR)", Case Analysis (2021). Busia HC ELC Civil Case No. 153 of 2014 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3725/eng@2021-04-14

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