Wilfred Munai Kilungu & another v Mutavi Munai [2021] KEELC 4195 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELC to extend time to lodge a notice of appeal to the Court of Appeal
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
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.
Whether the delay of about 4 months in lodging the notice of appeal was excusable
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
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.
Stay of execution, warrants of attachment and auctioneers' fees
Not determined, as these became moot once extension of time was refused
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.
Legal principles established
#- 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
#- 1.Leave granted for the firm of B.M Mung'ata & Co. Advocates to come on record for the defendant/applicant (prayer b)
- 2.Prayer to extend time to lodge a notice of appeal declined
- 3.Prayer to deem the notice of appeal filed on 12/10/2020 as filed on time declined
- 4.Prayer for stay of execution of the judgment of 21/05/2020 and decree declined
- 5.Prayer to lift/set aside warrants of attachment issued to Mambu Auctioneers declined
- 6.Prayer that auctioneers' fees be met by the plaintiff/respondent declined
- 7.Costs of the application awarded to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.