Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Number 62 of 2018 (Kerugoya) – Notice of Motion dated 3rd February 2020· [2021] KEELC 4271 (KLR)

Joseph Muriithi Munene v Francis Gitari Njoka & another [2021] KEELC 4271 (KLR)

Environment and Land Court
12 February 2021
1,741 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kerugoya court let a landowner appeal late because the court registry itself delayed his documents — but he paid the costs for dawdling afterwards.

What this practically means

#

Executive summary

#
By a Notice of Motion dated 3rd February 2020, the applicant sought extension of time to file and serve a Memorandum of Appeal against a ruling of Hon. A.K. Ithuku (C.M) delivered on 5th December 2019 in ELC No. 62 of 2018, Kerugoya, in which his suit (concerning Plot Number BCR-6 Kerugoya Township) was dismissed. The applicant deponed that he applied for a certified copy of the ruling and typed proceedings on the date of delivery and received them on 13th January 2020, after the 30-day period under Section 79G of the Civil Procedure Act had lapsed, and that he filed the application 17 days later. The respondents opposed, contending that the proceedings and ruling were not prerequisites to filing a memorandum of appeal, that the delay of 21 days from receipt of the ruling was unexplained, and that the intended appeal was unarguable as the suit had been struck out as time barred. Applying Section 79G CPA and the factors in Mwangi v Kenya Airways Ltd (2003) KLR — length of and reason for delay, arguability, prejudice, importance of compliance with time limits and public interest — the court, E.C. Cherono J, found the explanation satisfactory and the 17-day delay not inordinate, noting no demonstrated prejudice to the respondent. The application was allowed: leave to file and serve the memorandum of appeal within 7 days, with costs of the application borne by the applicant.

Key legal issues

#
01

Whether the delay of about 17 days after receipt of the ruling and proceedings was inordinate and excusable

Holding

The delay was satisfactorily explained and not inordinate, and the respondent showed no prejudice

Reasoning

The applicant applied for the certified ruling and typed proceedings on 5/12/2019 and received them on 13/1/2020, after the 30-day period had lapsed. He filed the application 17 days later, which the court held was not inordinate. The respondent did not demonstrate any prejudice that would follow if the extension were granted, so the discretion under Section 79G CPA was exercised in the applicant's favour.

p. 3
02

The legal test for extension of time under Section 79G CPA

Holding

The court adopted the Mwangi v Kenya Airways factors: length of and reason for delay, arguability of the appeal, prejudice to the respondent, importance of compliance with time limits, and effect on administration of justice

Reasoning

The court held that extension of time is a discretionary power to be exercised judicially on a case-by-case basis upon sufficient material being placed before the court. It enumerated the six factors from Mwangi v Kenya Airways Ltd (2003) KLR and applied them cumulatively, weighing them in totality before allowing the application.

p. 3

Legal principles established

#
  • An application for extension of time to appeal out of time is discretionary and must be exercised judicially on a case by case basis, guided by the Mwangi v Kenya Airways factors including period and reason for delay, arguability, prejudice and public interest.

Court orders

#
  1. 1.The Applicant is granted leave to file and serve a Memorandum of Appeal against the Ruling delivered and order issued by Hon. A.K. Ithuku (C.M) on 5th December 2019 in ELC No. 62 of 2018 (Kerugoya) within 7 days
  2. 2.The costs of this application to be borne by the Applicant
On appeal from
Principal Magistrates' Court (subordinate court), Kerugoya
ELC No. 62 of 2018 (Kerugoya)
Jurisdiction invoked
Section 79G of the Civil Procedure Act, Cap. 21 Laws of Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Joseph Muriithi Munene v Francis Gitari Njoka & another [2021] KEELC 4271 (KLR)", Case Analysis (2021). ELC Number 62 of 2018 (Kerugoya) – Notice of Motion dated 3rd February 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4271/eng@2021-02-12

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