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ELCAllowedMiscellaneous Application dated February 3, 2022 (arising from Chuka ELC Case No. 118 of 2018/2017)· [2022] KEELC 3254 (KLR)

Kanampiu v M’Raiji - Deceased (Environment & Land Miscellaneous Case 2 of 2022) [2022] KEELC 3254 (KLR)

High Court of Kenya
7 June 2022
CYC. K. Yano
1,959 words in judgment
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The bottom line

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Kenya's High Court allowed a late appeal because court delays in supplying proceedings caused it, giving hope to litigants in similar situations.

What this practically means

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Executive summary

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By a notice of motion dated February 3, 2022, Timothy Micheni sought leave to file an appeal out of time against the judgment in Chuka ELC Case No. 118 delivered on November 26, 2021. He explained that the delay arose because copies of the proceedings and judgment he applied for on December 5, 2021 were not supplied until January 14, 2022, by which time the statutory thirty-day period under section 79G of the Civil Procedure Act had expired. The respondent opposed the application, contending that the judgment was available for collection from December 1, 2021, that the applicant had not paid for or collected the proceedings, that the delay was inordinate and unexplained, and that she would suffer prejudice being denied the fruits of her judgment. Only the respondent filed submissions. Framing the sole issue as whether leave to appeal out of time should be granted, the court (C. K. Yano, J) applied section 79G and the factors in First American Bank v Gulab Shah, together with the Salat principles and authorities on the right to be heard, including Leiyagu v IEBC and Abbas Sherally. The court held that the applicant's explanation was justified and the delay not inordinate, that no prejudice would be occasioned to the respondent, and that it was in the interests of justice to allow the application. The application was allowed; the intended appeal was to be filed within seven days, with costs in the cause.

Key legal issues

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01

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

Holding

The application was allowed: the reason for the delay (late supply of proceedings and judgment) was justified, the delay was not inordinate, and no prejudice would be occasioned to the respondent.

Reasoning

The court applied section 79G of the Civil Procedure Act and the established factors from First American Bank v Gulab Shah and Salat principles: explanation for delay, arguability of the intended appeal, and prejudice to the respondent. Finding that the applicant's explanation was justified and the delay not inordinate, and that no prejudice would be occasioned, the court exercised its discretion in favour of the applicant, balancing the right to be heard against timely resolution.

p. 4

Legal principles established

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  • The court has wide unfettered discretion to grant leave to file appeal out of time, to be exercised considering the length of and reason for delay, chances of appeal succeeding, and prejudice to the respondent.

Court orders

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  1. 1.The application for leave to file appeal out of time is allowed
  2. 2.The intended appeal to be filed within 7 days from the date of the ruling
  3. 3.Costs in the cause
Jurisdiction invoked
Section 79G of the Civil Procedure Act (appeal from subordinate court to the High Court)

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, "Kanampiu v M’Raiji - Deceased (Environment & Land Miscellaneous Case 2 of 2022) [2022] KEELC 3254 (KLR)", Case Analysis (2022). Miscellaneous Application dated February 3, 2022 (arising from Chuka ELC Case No. 118 of 2018/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3254/eng@2022-06-07

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