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ELCPartially AllowedNot stated in judgment (application dated 12th October, 2020)· [2021] KEELC 4195 (KLR)

Wilfred Munai Kilungu & another v Mutavi Munai [2021] KEELC 4195 (KLR)

Environment and Land Court of Kenya
2 March 2021
3,480 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court confirmed it can extend appeal deadlines, but refused because the applicant blamed his lawyer without proof — unexplained delay kills appeals.

What this practically means

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Executive summary

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The defendant/applicant moved the Environment and Land Court at Makueni by a notice of motion dated 12th October 2020 seeking, principally, leave for new advocates to come on record, extension of time to lodge a notice of appeal against a judgment delivered on 21st May 2020, deeming of the notice of appeal filed on 12th October 2020 as filed on time, stay of execution of the judgment and decree, lifting of warrants of attachment issued to Mambu Auctioneers, and that auctioneers' fees be borne by the plaintiff/respondent. The applicant attributed the delay to a communication breakdown with his former advocate, saying he only learnt of the judgment when his livestock were attached. The respondent opposed, exhibiting emails showing the applicant's advocate received notice of judgment and the 60-day stay, participated in settling the decree and filed a preliminary objection to the bill of costs, and contending the court lacked jurisdiction to extend time, that being the province of the Court of Appeal. Relying on Munyao J in Loise Chemutai Ngurule, the court held that section 7 of the Appellate Jurisdiction Act confers concurrent jurisdiction on the High Court and courts of equal status, including this Court, to extend time for lodging a notice of appeal. On the merits, the court found from the chronology that there was no communication breakdown and that the applicant was using his former advocate as a scapegoat for his indolence; the delay of approximately four months was unexplained. Extension of time was accordingly refused, rendering the stay and execution-related prayers unnecessary. Only the unopposed prayer for change of advocates was allowed; all other prayers were declined with costs to the respondents.

Key legal issues

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01

Jurisdiction of the ELC to extend time to lodge a notice of appeal to the Court of Appeal

Holding

The Court has jurisdiction; section 7 of the Appellate Jurisdiction Act confers power on the High Court and courts of equal status to extend time for giving notice of intention to appeal, and this is not ousted by Rule 4 of the Court of Appeal Rules

Reasoning

Relying on Munyao J in Loise Chemutai Ngurule, the court construed section 7 of the Appellate Jurisdiction Act literally: the High Court, construed post-2010 to include the Environment and Land Court, may extend time for giving notice of intention to appeal. Rule 4 of the Court of Appeal Rules does not make the Court of Appeal's power exclusive, and the Court of Appeal in Kenya Airports Authority v Mutungi confirmed such an application is properly made in the High Court.

p. 4
02

Whether the delay of about 4 months in lodging the notice of appeal was excusable

Holding

The delay was not explained; the applicant's claim of a communication breakdown with his former advocate was a falsehood, as the record showed the advocate received notice of judgment, participated in the decree, and responded to the bill of costs

Reasoning

The court traced the chronology: the Deputy Registrar's email of 19th May 2020 reached the applicant's former advocate; the firm received the draft decree, and filed a preliminary objection to the bill of costs. An advocate would not act without instructions. The applicant took no action against the advocate and offered no other explanation, hence the discretionary factors for extension of time were not satisfied.

p. 4
03

Stay of execution, warrants of attachment and auctioneers' fees

Holding

Not determined, as these became moot once extension of time was refused

Reasoning

The court held that having declined to extend time for lodging the appeal, the ancillary prayers for stay, lifting of warrants and auctioneers' fees did not require determination, and all were declined with costs, save for the unopposed prayer for change of advocates.

p. 5

Legal principles established

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  • The power to extend time for filing a notice of appeal to the Court of Appeal is vested in both the High Court (and courts of equal status, including the Environment and Land Court) and the Court of Appeal, by dint of section 7 of the Appellate Jurisdiction Act
  • An applicant for extension of time must satisfactorily explain the delay; blaming an advocate without more, where the record shows the advocate acted throughout, does not qualify the applicant for a favourable exercise of discretion

Court orders

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  1. 1.Leave granted for the firm of B.M Mung'ata & Co. Advocates to come on record for the defendant/applicant (prayer b)
  2. 2.Prayer to extend time to lodge a notice of appeal declined
  3. 3.Prayer to deem the notice of appeal filed on 12/10/2020 as filed on time declined
  4. 4.Prayer for stay of execution of the judgment of 21/05/2020 and decree declined
  5. 5.Prayer to lift/set aside warrants of attachment issued to Mambu Auctioneers declined
  6. 6.Prayer that auctioneers' fees be met by the plaintiff/respondent declined
  7. 7.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3, 3A, 7, 75
  • Court of Appeal Rules, 2010Rules 4, 41, 75, 77(1)
  • Civil Procedure Rules, 2010Order 9 Rule 1, Order 42 Rule 6
  • Constitution of Kenya, 2010article 159

Cases cited (12)

  • Stanley Kahoro Mwangi & 2 others vs Kanyamwi Trading Company Limited
    [2015] eKLR
  • Mutiso v Mwangi, Civil Appln No. NAI 255 of 1997 (UR)
  • Mwangi v Kenya Airways Ltd
    {2003} KLR 486
  • Fakir Mohammed v Joseph Mugambi & 2 Others, Civil Appln No. NAI 332 of 2004
  • Kenya Railways Corporation vs Quick Lubes E.A Ltd
    (2015) eKLR
  • Marangu Rucha & another vs Bernadette Muthina Nzioki & 8 others
    [2015] eKLR
  • Dolphin Palms Ltd vs Al-Nasibh Trading Co. Ltd & Others, CA No. 112 of 1999
  • Patrick Kirunja Kithinji vs Victor Mugiva Marete
    (2015) eKLR
  • County Government of Mombasa vs Kooba Kenya Limited
    [2019] eKLR
  • Loise Chemutai Ngurule & Another vs Winfred Leshwari Kimung'en & 2 Others
    (2015) eKLR
  • Simon Towett Martim v Jotham Muiruri Kibaru, Miscellaneous Civil Application No. 172 of 2004
    (2004) eKLR
  • Kenya Airports Authority & Another vs Timothy Nduvi Mutungi, Civil Application No. NAI 165 of 2013 (UR 113/2013)
    (2014) eKLR
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act (Cap 9), read with Order 42 Rule 6 of the Civil Procedure Rules, 2010

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, "Wilfred Munai Kilungu & another v Mutavi Munai [2021] KEELC 4195 (KLR)", Case Analysis (2021). Not stated in judgment (application dated 12th October, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4195/eng@2021-03-02

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