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ELCDismissedELC Case (Makueni), Notice of Motion dated 29th April 2021 (arising from L.T.C No. 19 of 2008)· [2022] KEELC 2373 (KLR)

Maliango v Kinovi & another (Miscellaneous Application E005 of 2021) [2022] KEELC 2373 (KLR)

Environment and Land Court
6 July 2022
CMC.G. MBOGO
1,884 words in judgment
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The bottom line

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A Kenyan court refused to let a man appeal a 2008 land decision 13 years late because he couldn't explain the delay.

What this practically means

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Executive summary

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The applicant, Kwinga Maliango, moved the Environment and Land Court by notice of motion dated 29th April 2021 seeking leave to file a memorandum of appeal out of time against the judgment and decree adopting the Makueni District Land Dispute Tribunal decision in case no. 53/2006, adopted by the Makueni Magistrates' Court in L.T.C No. 19 of 2008 on 29th October 2008, and a temporary injunction restraining the respondents from dealing with parcel Nzaui/Ikangavya/65. He claimed the land was ancestral land fraudulently acquired, and attributed the delay to illness, hospitalization and the death of Kavisi Kinoti, whose estate lacked an administrator when the Tribunal proceedings were taken. The respondents opposed, noting the 30-day right of appeal expired long before, that sickness was an afterthought, and that limitation had extinguished any claim. The applicant relied on Section 79G of the Civil Procedure Act and extension-of-time authorities; the respondents relied on the Limitation of Actions Act and argued the draft appeal was unarguable. Mbogo CG J applied the Salat and Leo Sila Mutiso principles, finding the 13-year delay inordinate and the explanation of ill health implausible, as the only medical document was dated 24th October 2019 and could not account for the entire period. The court therefore declined to assess arguability and dismissed the application with no orders as to costs on 6th July 2022.

Key legal issues

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01

Whether the applicant should be granted leave to file a memorandum of appeal out of time

Holding

The application was dismissed; the applicant failed to give a good and reasonable explanation for the 13-year delay in filing the appeal

Reasoning

The court set out the parameters from the Salat and Leo Sila Mutiso authorities: length of and reason for delay, undue delay in bringing the application, arguability of the appeal, and prejudice. The magistrates' court adopted the Tribunal award on 29th October 2008 with a 30-day right of appeal, yet the memorandum of appeal was dated 29th April 2021 - 13 years later. The only medical document supporting claimed ill health was dated 24th October 2019, which could not explain the whole period. Finding no plausible reason for the delay, the court declined to assess arguability as it would be a futile exercise.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party, and the applicant bears the burden of explaining the delay to the court's satisfaction
  • Under Section 79G of the Civil Procedure Act, an appeal from a subordinate court may be admitted out of time if the appellant shows good and sufficient cause for the delay

Court orders

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  1. 1.The notice of motion application dated 29th April 2021 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Environment & Land Court ActSections 13, 16A & 30
  • Civil Procedure RulesOrder 50 Rule 5; Order 40 Rule 1(a); Order 51 Rules 1 & 3
  • Civil Procedure ActSections 3, 3A, 79G and 95
  • Limitation of Actions Act Cap 22Sections 17 and 18

Cases cited (7)

  • Gilbert Kimutai Koech versus Wilson Kipngeno Koech
    [2018] eKLR
  • Aviation Cargo Support Limited versus St Mark Freight Service Limited
    [2014] eKLR
  • Sayers versus Clarke Walker (A Firm)
    2002 EWCA Civ 645
  • Giella versus Cassman Brown & Company Limited
    [1972] EA 358
  • Dickson Ngige Ngugi versus Consolidated Bank Limited & Another
    ELC No. 583 of 2016
  • Nicholas Kiptoo Korir arap Salat v IEBC & 7 Others
    [2014] eKLR
  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
On appeal from
Makueni Magistrates' Court (adopting Makueni District Land Dispute Tribunal at Matiliku, case no. 53/2006)
L.T.C No. 19 of 2008
Jurisdiction invoked
Sections 13, 16A & 30 of the Environment & Land Court Act; Sections 79G and 95 of the Civil Procedure Act; Order 50 Rule 5, Order 40 Rule 1(a), Order 51 Rules 1 & 3 of the Civil Procedure Rules; Sections 3 and 3A of the Civil Procedure Act

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, "Maliango v Kinovi & another (Miscellaneous Application E005 of 2021) [2022] KEELC 2373 (KLR)", Case Analysis (2022). ELC Case (Makueni), Notice of Motion dated 29th April 2021 (arising from L.T.C No. 19 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2373/eng@2022-07-06

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