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ELCDismissedNot stated in judgment (application dated 24th September, 2020)· [2022] KEELC 1957 (KLR)

Kaituai Ole Mareru v Nooretet Enole Mareru [2022] KEELC 1957 (KLR)

High Court of Kenya
27 January 2022
CMC.G. Mbogo
1,939 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Applicant moved the High Court at Narok by Notice of Motion dated 24th September 2020, invoking sections 3, 3A and 63(c) and (e) of the Civil Procedure Act and Orders 51 and 22 of the Civil Procedure Rules, seeking leave to file an appeal out of time from the decision in District Land Dispute Tribunal Misc. Case No. 15 of 2011, which was adopted by the Narok Senior Principal Magistrates Court on 26th July 2011. He attributed the delay to illness, evidenced by a medical report, and to the late furnishing of Tribunal proceedings, and relied on In re John Mwangi Ng'ang'a. The Respondent opposed through Grounds of Opposition, contending the application offended section 79G of the Civil Procedure Act, that the delay was inordinate and unexplained, and that limitation principles barred the claim, relying on four authorities including the Republic v Kenya Civil Aviation Authority decision. The court framed two issues: whether there were good and sufficient reasons for allowing the application, and whether it was merited. Applying section 8(1) of the Land Disputes Tribunal Act and section 79G, the court held that the 30-day appeal period had expired before the Applicant even requested the proceedings; his illness did not explain the delay since his first hospital attendance predated the decisions; and he had not shown the diligence of a genuine appellant. Noting the impugned decision was over ten years old and that litigation must come to an end, the court found no merit in the application, dismissed it, and awarded costs to the Respondent.

Key legal issues

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01

Good and sufficient cause under section 79G of the Civil Procedure Act

Holding

The Applicant failed to demonstrate good and sufficient cause; the 30-day appeal period under section 8(1) of the Land Disputes Tribunal Act had lapsed before he even requested proceedings, and illness did not explain the delay since hospital attendance predated the decisions.

Reasoning

The Tribunal's decision was made on 8th June 2011 and adopted on 26th July 2011. The Applicant requested proceedings only on 1st August 2011, after the 30-day period had already expired, and did not explain why he did not then seek leave. The medical report showed first hospital attendance on 14th January 2011, before the decisions, so illness could not excuse the failure to appeal in time.

p. 3
02

Whether the application was merited in the interest of justice

Holding

Not merited; the impugned decision was over ten years old and the Applicant lacked diligence.

Reasoning

The court held that the Applicant had not demonstrated the diligence of a person genuinely wanting to appeal, and that allowing a decade-old decision to be reopened would be contrary to the interest of justice, since litigation must end at some point. The application was accordingly dismissed with costs.

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Legal principles established

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  • The burden of satisfying the court of good and sufficient cause for filing an appeal out of time under section 79G rests on the applicant.
  • Litigation must come to an end; inordinate unexplained delay of over ten years defeats an application for extension of time.

Court orders

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  1. 1.The application is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure Actsections 3, 3A, 63(c), (e), 79G
  • Civil Procedure Rules, 2010Order 51 Rules 1 and 3; Order 22 Rule 29; Order 53 Rule 2
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Law Reform Act (Cap 26, Laws of Kenya)section 9(3)
  • Land Disputes Tribunal Actsection 8(1)

Cases cited (5)

  • In re John Mwangi Ng’ang’a alias John De Matthew
    [2016] eKLR
  • Nicholas Kiptoo Arap Korir vs Independent Electoral and Boundaries Commission & 7 Others
  • Zedekiah M. Mwale vs Bikeke Farm Directors & Another
  • Robert Adera Opiyo & Another vs Roseline Amondi Otieno
  • Republic vs Kenya Civil Aviation Authority & Another ex parte Elite Earth Movers Limites
    [2017] eKLR
Jurisdiction invoked
Sections 3, 3A, 63(c), (e) of the Civil Procedure Act; Order 51 Rules 1 and 3 and Order 22 Rule 29 of the Civil Procedure Rules, 2010; Article 159(2)(d) of the Constitution of Kenya, 2010

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, "Kaituai Ole Mareru v Nooretet Enole Mareru [2022] KEELC 1957 (KLR)", Case Analysis (2022). Not stated in judgment (application dated 24th September, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1957/eng@2022-01-27

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