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ELCDismissedELC Miscellaneous Application (number not stated in the judgment)· [2022] KEELC 2081 (KLR)

James Ouko Okumbe v Joshua Abongo Okumbe & another [2022] KEELC 2081 (KLR)

Environment and Land Court
20 January 2022
1,111 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a bid to appeal late because the application failed to say which ruling was being appealed.

What this practically means

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Executive summary

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The applicant, Dr. James Ouko Okumbe, moved the Environment and Land Court by a notice of motion dated 5/11/2021, invoking Sections 1A, 3A, 79G and 95 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking extension of time to file an appeal, leave to appeal out of time, and leave to lodge and serve a memorandum and record of appeal. He attributed the delay to the actions of his previous advocates, the effects of the COVID-19 pandemic, and the temporary disappearance of the court file from the registry, relying on authorities including Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet and Belinda Muras v Amos Wainaina. The respondent opposed, contending the motion was fatally defective for failing to disclose the case number and decision appealed from, that the delay was inordinate and inexcusable, and that the applicant had filed two other similar applications. The court noted that this was at least the applicant's second attempt, a near-identical motion having been struck out in ELC Miscellaneous Application No. 5 of 2021 by a ruling dated 21/10/2021, with the only apparent departure being the annexation of a draft memorandum of appeal. The court held that although it has discretion under Sections 79G and 95, the discretion must be exercised with abundant caution; the motion on its face did not disclose the substance of the decision intended to be appealed against. Parties being bound by their pleadings, granting the orders would be futile. The motion was found fatally defective, incompetent, a nullity and an abuse of process, and was dismissed with costs to the applicant.

Key legal issues

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01

Whether the motion for extension of time and leave to appeal out of time under Sections 79G and 95 of the Civil Procedure Act is merited

Holding

The motion was dismissed as fatally defective, incompetent and a nullity because it did not disclose the decision the applicant intended to appeal against

Reasoning

Although the court has discretion under Sections 79G and 95 to enlarge time on demonstration of good and sufficient cause, that discretion must be exercised with abundant caution. The motion on its face did not disclose the substance of the decision intended to be appealed against. Parties are bound by their pleadings, and granting the orders sought would be an exercise in futility since the court and decision aggrieved are not disclosed. The court declined to guide the applicant and found the motion an abuse of process.

p. 2
02

Whether a respondent may rely on both a replying affidavit and grounds of opposition

Holding

A party should rely on only one response, not both

Reasoning

The court noted as a preliminary point that the respondent had filed both a replying affidavit and grounds of opposition and indicated that he should have elected only one mode of response rather than both simultaneously.

p. 2

Legal principles established

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  • An application for extension of time must disclose the substance of the decision intended to be appealed against; a motion that fails to identify the decision is fatally defective
  • Courts decide cases on the pleadings presented and cannot guide parties on refining their pleadings or prayers

Court orders

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  1. 1.The notice of motion dated 5/03/2021 is dismissed
  2. 2.Costs shall be borne by the applicant

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (5)

  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    (2018) eKLR
  • Itute Ngui & Anor vs Isumail Mwakavi Mwendwa
    Civil Application No. Nai.166 of 1997
  • Belinda Muras & 6 others v Amos Wainaina
    (1978) KLR
  • Philip Chemwolo & Another v Augustine Kubede
    (1982-88) KLR 103
  • Nicholas Kiptoo Arap Korir Salat
Jurisdiction invoked
Sections 1A, 3A, 79G and 95 of the Civil Procedure Act and Order 51 Rule 1 of the 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, "James Ouko Okumbe v Joshua Abongo Okumbe & another [2022] KEELC 2081 (KLR)", Case Analysis (2022). ELC Miscellaneous Application (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2081/eng@2022-01-20

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