Esther Inyanje Toloi & another v Krispinus Simiti Tembete [2021] KEELC 4174 (KLR)
The bottom line
#The High Court in Kakamega struck out a land appeal filed five months late without permission, and dismissed the injunction filed with it.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal was properly filed within the statutory period
The appeal filed on 21st September 2020 against a judgment delivered on 23rd April 2020 was out of time and filed without leave, rendering it an abuse of due process
Section 79G of the Civil Procedure Act requires appeals from subordinate courts to the High Court to be filed within thirty days, extendable only on good and sufficient cause. No leave was sought or obtained. The court, citing Paul Musili Wambua on the factors for extension of time and Keycorp Real Advisory on the mandatory nature of 'shall', found no basis to excuse the delay and struck out the appeal.
Whether the injunction application could survive independently of the appeal
The application for injunction was dismissed because it was anchored on an appeal that had been struck out
The applicant sought injunctions restraining the respondents from dealing with the suit plots pending hearing of the appeal. Having found the appeal improperly filed and struck it out, the court held that the application had no foundation, since the injunctive relief was tied to the appeal's survival. Consequently the application was dismissed with costs to the respondents.
Legal principles established
#- Every appeal from a subordinate court to the High Court must be filed within thirty days of the decree or order appealed against, and may only be admitted out of time upon demonstration of good and sufficient cause
- The word 'shall' in a statutory provision is mandatory and imports a command or obligation
Court orders
#- 1.The appeal is struck out for having been filed out of time without leave of the court
- 2.The application dated 28th September 2020 is dismissed, there being no appeal
- 3.Costs of the appeal and the application to the respondents
- On appeal from
- Subordinate court (Kakamega)
- null
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (appeals from subordinate courts to the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Inyanje Toloi & another v Krispinus Simiti Tembete [2021] KEELC 4174 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4174/eng@2021-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.