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ELCAllowedNot stated in judgment· [2022] KEELC 2474 (KLR)

Maina (Suing for and on behalf of his Mother Loise Nyaguthii Maina) v Kobia & 2 others (Miscellaneous Application 51 of 2021) [2022] KEELC 2474 (KLR)

Environment and Land Court
20 July 2022
801 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed a four-month late appeal because the applicant never received an email notice of the ruling, granting 14 days to file.

What this practically means

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Executive summary

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By an application dated December 22, 2021, Job N. Njeru Maina sought leave to file an appeal out of time against a ruling delivered on August 19, 2021 by the Tigania Law Courts in ELC 97 of 2018. He explained that the ruling was delivered by email but the email was never received, that he only learned of the outcome on November 20, 2021, and cited Covid-19 regulations, arguing the appeal was arguable and that no prejudice would befall the respondent. Solomon Muriungi Kobia opposed, contending the delay was inordinate and unexplained, that review and appeal could not be pursued simultaneously, that the application was an abuse of process and that the applicant was an indolent litigant. In written submissions, the applicant relied on Omar Shurie, Jaber Mohsen Ali and Nkoyai M'Thiringi, framing the issues as length of delay, reasons for it, chances of success and prejudice. The respondent relied on Thuita Mwangi, Mutiso vs Mwangi, Nicholas Kiptoo Arap Salat, County Executive of Kisumu, Kaimenyi, Jeniffer Nyambura Kamau and Reuben Mwongela M'Itelekwa. Applying the Salat criteria, C.K. Nzili (ELC Judge) held the delay was not inordinate and the explanation reasonable, noting a party is entitled to his day in court, and found no prejudice since the respondent could be compensated by costs. The application was allowed with costs, with leave to file the appeal within 14 days, and the file was closed.

Key legal issues

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01

Whether the delay of approximately four months in filing the appeal was inordinate

Holding

The delay was not inordinate and the explanation was reasonable, given the applicant's entitlement to his day in court.

Reasoning

The ruling was delivered on August 19, 2021 and the application filed December 23, 2021. The applicant claimed he learned of the outcome only on November 20, 2021, and that the email said to convey the ruling was never sent. Although the supporting affidavit did not attach the proceedings, the court accepted the explanation as reasonable and found no inordinate delay.

p. 2
02

Whether the respondent would suffer prejudice if leave were granted

Holding

No prejudice would be suffered; any prejudice could be compensated by costs.

Reasoning

The court held that granting the applicant an opportunity to appeal would not occasion the respondent prejudice, since the respondent could be compensated by an award of costs. This completed the Salat criteria and justified allowing the extension.

p. 2

Legal principles established

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  • An applicant for leave to file an appeal out of time must satisfy the court on the reasons for the delay, timeliness of the application and prejudice to the respondent.

Court orders

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  1. 1.Leave granted to the applicant to file an appeal out of time against the ruling delivered on August 19, 2021 in Tigania Law Courts ELC 97 of 2018
  2. 2.The appeal to be filed within 14 days from the date of the order
  3. 3.Costs of the application awarded to the applicant
  4. 4.File closed

Authorities

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Cases cited (11)

  • Omar Shurie vs Marian Rashe Yafar
  • Jaber Mohsen Ali & another vs Priscilla Boit & another
    (2014) eKLR
  • Nkoyai M'Thiringi vs Shadrack Mwendwa Mwiti & another
    (2021) eKLR
  • Thuita Mwangi vs Kenya Airways
    (2003) eKLR
  • Mutiso vs Mwangi
    (1997) KLR 630
  • Nicholas Kiptoo Arap Salat vs IEBC & 7 others
    (2014) eKLR
  • County Executive of Kisumu vs County Government of Kisumu & 8 others
    (2017) eKLR
  • Professor Mwangi S. Kaimenyi vs the Attorney General & another
    (2014) eKLR
  • Jeniffer Nyambura Kamau vs Humphrey Mbaka Nandi
    (2013) eKLR
  • Reuben Mwongela M'Itelekwa (Suing as the legal representative of the Estate of M'Itelekwa M'Mucheke Naituri alias M'Itelekwa Mucheke) vs Paul Kigea Nabea & 2 others
    (2019) eKLR
  • Nicholas Kiptoo Arap Salat vs IEBC
    (2015) eKLR
On appeal from
Tigania Law Courts
ELC 97 of 2018
Jurisdiction invoked
Inherent power to extend time for filing an appeal (extension-of-time application under the applicable appeal provisions, not expressly cited)

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, "Maina (Suing for and on behalf of his Mother Loise Nyaguthii Maina) v Kobia & 2 others (Miscellaneous Application 51 of 2021) [2022] KEELC 2474 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2474/eng@2022-07-20

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