Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2022] KEELC 137 (KLR)

Chepkwony v Kaura Barngetuny (Suing as the Adm. of the Estate of Stonik Orwacho) (Environment and Land Miscellaneous Application E004 of 2021) [2022] KEELC 137 (KLR)

Environment and Land Court
9 June 2022
859 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a request to appeal late because the applicant failed to show the appeal had any realistic chance of succeeding.

What this practically means

#

Executive summary

#
This was an unopposed Notice of Motion dated 10th February 2021 by the defendant, Dennis Chepkwony, seeking leave to appeal out of time against a judgment delivered by Hon. Wakahiu CM on 27th May 2020, and that such leave operate as a stay of proceedings. The application was grounded on the applicant's claim that he was never served with the court documents or the decree and only learnt of the judgment when the respondent moved to execute, having been served with an eviction order. The respondent, though served on 8th March 2022, did not enter appearance. The court noted that counsel's submissions addressed only stay of execution under Order 42 Rule 6 rather than the primary question of extension of time. Adopting the three conditions from APA Insurance Ltd v Michael Kinyanjui Mutua (length of delay, prejudice to the respondent, and chances of the appeal succeeding), the court found no inordinate delay, since the applicant presumably filed soon after the eviction order was received at Mulot Police Station, and no prejudice to the respondent given the applicant's occupation of the suit property for almost 30 years. However, the court was unable to assess the chances of the appeal succeeding because it had not perused the lower court judgment, and found the application unmeritorious. The application was dismissed with no orders as to costs, and judgment was delivered via email on 9th June 2022.

Key legal issues

#
01

Whether there was inordinate delay in filing the application for leave to appeal out of time

Holding

There was no inordinate delay, as the applicant presumably filed promptly after being served with the eviction order in January 2022, though he left the court to speculate on when he became aware of the judgment.

Reasoning

The applicant did not disclose when he learnt of the judgment of 27th May 2020. The eviction order annexed was received at Mulot Police Station on 7th January 2022 and presumably served soon thereafter, with the application filed shortly after. The court found no inordinate delay but criticised the applicant for leaving the timing of his awareness to speculation.

p. 2
02

Whether the applicant satisfied the conditions for leave to appeal out of time

Holding

The application failed because the court could not determine the chances of the appeal succeeding without perusing the judgment sought to be appealed against.

Reasoning

Applying the three APA Insurance conditions, the court found no inordinate delay and no prejudice to the respondent given the applicant's occupation of the suit property for nearly 30 years. However, the third condition — the chances of appeal succeeding — could not be assessed because the court did not peruse the lower court judgment, rendering the application unmeritorious despite the claim of no notice of the judgment.

p. 2

Legal principles established

#
  • The powers of the court in deciding an application for extension of time are discretionary and unfettered.
  • Three conditions govern leave to appeal out of time: length of delay, prejudice to the respondent, and chances of the appeal succeeding.

Court orders

#
  1. 1.The application is dismissed with no orders as to costs

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 78, 79(a)
  • Civil Procedure RulesOrder 42 Rules 6 and 11

Cases cited (2)

  • Stanley Kahoro Mwanri & 2 others Versus Kanyawi Trading company
    (2015) eKLR
  • APA Insurance Ltd Versus Michael Kinyanjui Mutua
    (2016) eKLR
On appeal from
Chief Magistrates' Court (judgment by Hon. Wakahiu CM)
Jurisdiction invoked
Sections 1A, 1B, 3A, 78, 79(a) of the Civil Procedure Act and Order 42 Rules 6 and 11 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Chepkwony v Kaura Barngetuny (Suing as the Adm. of the Estate of Stonik Orwacho) (Environment and Land Miscellaneous Application E004 of 2021) [2022] KEELC 137 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/137/eng@2022-06-09

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