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ELCDismissedChamber Summons dated 30th July, 2021 (arising from Gichugu PM's Civil Suit No. 23 of 2016)· [2022] KEELC 776 (KLR)

Francis Muchira Kithece v Joseph Muthike Kibuchi [2022] KEELC 776 (KLR)

Environment and Land Court
11 March 2022
ECE.C. Cherono
2,786 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 in Kerugoya dismissed a late appeal because the applicant explained neither his delay nor chose between review and appeal.

What this practically means

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Executive summary

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The applicant sought leave under Section 79G of the Civil Procedure Act to appeal out of time against a judgment of 4th September 2020 and a ruling of 28th May 2021 delivered by Hon. L.W. Kabaria in Gichugu PM's Civil Suit No. 23 of 2016, in which his claim for declaration of ownership, eviction and damages over parcel Baragwe/Raimu/1507 was dismissed as a boundary dispute under Section 18(2) of the Land Registration Act. The respondent opposed, arguing the delay of over ten months was unexplained, the medical evidence was inadequate, and that having pursued review the applicant could not also appeal. The applicant relied on ill health, old age and poverty, and cited Article 159(2)(d) on substantive justice. The court held that prayers for status quo were spent, equity does not act in vain, and applying the Salat principles on extension of time found the delay unexplained: the treatment notes showed one hospital visit and the review application came six months after judgment, evidencing indolence and afterthought. Relying on Section 80 of the Civil Procedure Act and Order 45(2) of the Civil Procedure Rules, the court further held that a party must elect between review and appeal, and the applicant having exhausted review, no appeal lay against the judgment. The Chamber Summons dated 30th July 2021 was dismissed with costs to the respondent.

Key legal issues

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01

Whether the delay of over 10 months since the judgment (and 3 months since the ruling) was excusable

Holding

The delay was not explained; medical documents covered only one visit and did not account for the relevant periods, demonstrating indolence.

Reasoning

The applicant blamed old age, ill health and lack of funds. The court found the treatment notes and undated health department letter failed to explain the periods between 4th September 2020 and June 2021, and the three months before filing the application. Equity does not aid the indolent, so the discretionary relief was refused.

p. 4
02

Whether the applicant, having pursued review, could still appeal

Holding

No; the review having been pursued and dismissed, the avenue of appeal against the same judgment was foreclosed.

Reasoning

Relying on Section 80 of the Civil Procedure Act and Order 45(2) of the Civil Procedure Rules, the court held that a party must elect between review and appeal; the applicant's earlier six-month-late review application showed the appeal was an afterthought and exhausted the review option.

p. 4
03

Whether interim status quo orders should issue

Holding

Prayers 2 and 4 were spent and equity will not act in vain by issuing obsolete orders.

Reasoning

The court invoked the equitable maxim that equity does nothing in vain, citing the Court of Appeal in Makokha v Sagini, holding that making unenforceable or practically ineffective orders would stultify the court.

p. 3

Legal principles established

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  • Extension of time is an equitable, discretionary remedy, not a right, and requires satisfactory explanation of the delay
  • A party cannot both apply for review of, and appeal from, the same decree or order

Court orders

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  1. 1.The Chamber Summons dated 30th July, 2021 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Land Registration ActSection 18(2)
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)(d)
  • Evidence ActSections 107, 108 and 109
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1(2) / Order 45(2)

Cases cited (7)

  • Fatuma Abdi Jillo Vs Kuro Lengesen & Another
    (2021) e KLR
  • Kenya Power & Lighting Company Ltd Vs Rose Anyango & Another
    (2020) e KLR
  • Kivanga Estates Limited Vs National Bank of Kenya Limited
    (2017)
  • Charles Munyeki Wachira Vs Kenya Pipeline Company Limited
    (2006) e KLR
  • Eric V. J. Makokha & 4 others Vs Lawrence Sagini & 2 others
    [1994] e KLR
  • Nicholas Kiptoo Arap Korir Salat Versus Independent Electoral and Boundaries Commission & 7 others
    (2014) e KLR
  • Joreth Limited Vs Mbugua & 3 others
    (Civil Application E219 of 2021) [2022] KECA 163 (KLR) (Civ)
On appeal from
Principal Magistrate's Court at Gichugu
Civil Suit Number 23 of 2016; ruling of 28th May 2021
Jurisdiction invoked
Section 79G of the Civil Procedure Act (leave to appeal out of time); Section 80 Civil Procedure Act and Order 45 Civil Procedure Rules

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, "Francis Muchira Kithece v Joseph Muthike Kibuchi [2022] KEELC 776 (KLR)", Case Analysis (2022). Chamber Summons dated 30th July, 2021 (arising from Gichugu PM's Civil Suit No. 23 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/776/eng@2022-03-11

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