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ELCDismissedNot stated in judgment (arising from intended appeal against Vihiga MCELC Case No. 164 of 2018)· [2022] KEELC 225 (KLR)

Livingstone Asala Amulavi v Raphael Chazima Chegenye [2022] KEELC 225 (KLR)

Environment and Land Court of Kenya
26 April 2022
1,342 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to let a litigant appeal 18 months late, because courts only excuse delays with genuine, convincing explanations.

What this practically means

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Executive summary

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The applicant moved the Environment and Land Court at Kakamega by Notice of Motion dated 17th May 2021 seeking leave to file an appeal out of time against the judgment and decree in Vihiga MCELC Case No. 164 of 2018, delivered on 26th November 2019, together with a stay of execution pending that appeal. The respondent opposed through a preliminary objection, grounds of opposition and a replying affidavit, contending that the applicant had instead moved the High Court seeking revocation of the grant in respect of the suit property, so the matter had become a succession matter and the court lacked jurisdiction. The applicant relied on Mukisa Biscuit to argue the objection was not a competent preliminary objection as it turned on disputed facts. The court, D. O. Ohungo J, applied the Mukisa Biscuit test and dismissed the preliminary objection, holding that appeals from designated magistrate's courts exercising environment and land jurisdiction lie to the ELC under Section 26(4) of the Environment and Land Court Act, 2011, and that parallel proceedings elsewhere did not oust that jurisdiction. On the merits, applying the Salat extension-of-time principles, the court found a delay of one and a half years against the 30-day statutory window in Section 16A, noted the applicant's prior stay application made no mention of the hardship now alleged, and concluded he had opted for other remedies instead of appealing. Leave was refused and, there being no appeal, stay could not issue. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the preliminary objection on jurisdiction succeeded

Holding

It failed; the ELC has express jurisdiction under Section 26(4) of the ELC Act to hear appeals from the subordinate court's environment and land decisions, and parallel succession proceedings do not oust that jurisdiction

Reasoning

The court found the proposed appeal targets a judgment rendered by the subordinate court in exercise of its environment and land jurisdiction under Section 9(a) of the Magistrates' Courts Act read with Section 26 of the ELC Act. Since jurisdiction was expressly conferred by Section 26(4), the existence of other issues in another court was irrelevant to this court's appellate jurisdiction.

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02

Whether leave to appeal out of time and stay of execution should be granted

Holding

Both refused; the delay of one and a half years was unexplained and the applicant had opted to pursue other remedies, including revocation of the grant and stay applications, instead of appealing

Reasoning

Applying the Salat principles, the court noted the judgment was delivered on 26th November 2019 and the application filed 7th June 2021, well beyond the 30-day window in Section 16A of the ELC Act. The applicant had been aware of the judgment, had sought stay in the subordinate court without citing hardship, and the explanations now offered did not add up.

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Legal principles established

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  • A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded against the objector are correct; an objection resting on disputed facts is not valid
  • Appeals from designated magistrate's courts in exercise of environment and land jurisdiction lie to the Environment and Land Court under Section 26(4) of the Environment and Land Court Act, 2011
  • Extension of time is an equitable remedy available only to a deserving party at the court's discretion, and the applicant bears the burden of explaining the delay

Court orders

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  1. 1.The preliminary objection dated 1st November 2021 is dismissed
  2. 2.The Notice of Motion dated 17th May 2021 is dismissed with costs to the respondent

Authorities

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Legislation

  • Magistrates' Courts ActSection 9(a)
  • Environment and Land Court Act, 2011Section 26 (including Section 26(4))
  • Environment and Land Court Act, 2011Section 16A

Cases cited (2)

  • Mukisa Biscuit Manufacturing Co. Ltd Vs. West End Distributors Ltd
    (1969) EA 696
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
On appeal from
Chief Magistrate's Court (Vihiga MCELC)
164 of 2018
Jurisdiction invoked
Section 26(4) of the Environment and Land Court Act, 2011

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, "Livingstone Asala Amulavi v Raphael Chazima Chegenye [2022] KEELC 225 (KLR)", Case Analysis (2022). Not stated in judgment (arising from intended appeal against Vihiga MCELC Case No. 164 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/225/eng@2022-04-26

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