Muinde v Kenya Power & Lighting Company Limited (Miscellaneous Application E035 of 2021) [2022] KEELC 2518 (KLR)
The bottom line
#Kenya's Environment and Land Court gave an appellant 14 more days to appeal, ruling the short Covid-era delay excusable and no special permission needed.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over extension-of-time application
The preliminary objection failed; the Energy Act did not divest the court of jurisdiction over an application to extend time for appeal
The dispute before the court was not the underlying claim over trees and coffee stems but an application for leave to appeal out of time against dismissal of a reinstatement application. Section 79G vests the power to extend time in the court that admits the appeal, so the Energy and Petroleum Regulatory Authority had no role.
Whether leave to appeal was necessary
Not necessary - an appeal from an Order 12 Rule 7 decision lies as of right under Order 43 Rule 1(h)
The Respondent argued the application offended section 75 and Order 43 Rule 1(3). The court held the application was for extension of time, not leave under section 75; and in any event an appeal against a decision under Order 12 Rule 7 lies as of right, so leave was superfluous.
Whether the 23-day delay should be excused
Delay of 23 days was not inordinate given the Covid-19 pandemic; no prejudice shown by Respondent
Applying the Salat criteria, the court considered duration and explanation for delay and prejudice. Courts were operating under Covid-19 restrictions in 2021, the Respondent did not substantively respond on the merits of extension, and no prejudice was demonstrated.
Legal principles established
#- An application to extend time under section 79G falls within the appellate jurisdiction of the court, not the Energy and Petroleum Regulatory Authority
- An appeal against a decision under Order 12 Rule 7 lies as of right and no leave is required
- A short delay partly caused by the Covid-19 pandemic is not inordinate and is excusable
Court orders
#- 1.The preliminary objection dated 12th November 2021 has no merit and the same is dismissed.
- 2.The application dated 7th June 2021 is allowed and the Applicant is granted leave to file and serve his appeal within 14 days of this ruling.
- 3.Costs of the application shall be borne by the Applicant.
- On appeal from
- Chief Magistrate's Court, Machakos
- Machakos CMCC No. 290 of 2014
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act; Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muinde v Kenya Power & Lighting Company Limited (Miscellaneous Application E035 of 2021) [2022] KEELC 2518 (KLR)", Case Analysis (2022). Machakos CMCC No. 290 of 2014 (Appeal thereto). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2518/eng@2022-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.