Hamisa Swaleh v Rama Swaleh & Mauwa Swaleh [2021] KEELC 4584 (KLR)
The bottom line
#Kenya's Environment and Land Court refused a second chance to appeal, ruling that filing an appeal late without permission ends your appeal rights.
What this practically means
#Executive summary
#Key legal issues
#Whether extension of time under Section 79G should be granted where the applicant had already lodged an appeal out of time which was struck out
The application was dismissed; the applicant, being represented by counsel, consciously filed an appeal out of time and without leave, and upon its striking out the appellate process was exhausted.
The court found that under Section 79G appeals must be filed within thirty days. The applicant filed Appeal No. 22 of 2017 on 4th October 2017, outside the statutory period and without leave, and the court struck it out on 7th March 2019. The court held that the applicant had exercised her right of appeal, albeit irregularly, and thus exhausted the process; permitting the present application would amount to trial and error and an abuse of process. Litigation must come to an end, and for the applicant it ended with the striking out of her appeal.
Legal principles established
#- A party who irregularly files an appeal out of time without leave, and whose appeal is struck out on that account, has exhausted the appellate process and cannot obtain a second chance through a fresh extension-of-time application; litigation must come to an end.
Court orders
#- 1.The notice of motion dated 11th June, 2019 is dismissed with costs to the respondents
- Jurisdiction invoked
- Sections 79G, 3A and 95 of the Civil Procedure Act and Order 51 Rules 1 and 2 (with Order 50 Rule 6) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hamisa Swaleh v Rama Swaleh & Mauwa Swaleh [2021] KEELC 4584 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 11th June, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4584/eng@2021-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.