Livingstone Asala Amulavi v Raphael Chazima Chegenye [2022] KEELC 225 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the preliminary objection on jurisdiction succeeded
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
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.
Whether leave to appeal out of time and stay of execution should be granted
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
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.
Legal principles established
#- 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
#- 1.The preliminary objection dated 1st November 2021 is dismissed
- 2.The Notice of Motion dated 17th May 2021 is dismissed with costs to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.