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ELCDismissedELC No 11 of 2013 (formerly Malindi Petition No 11 of 2013)· [2022] KEELC 3618 (KLR)

Yeri v Registrar of Titles Mombasa & 2 others; Gao Yu International Company Limited & 4 others (Interested Parties) (Environment and Land Constitutional Petition 11 of 2013) [2022] KEELC 3618 (KLR)

Environment and Land Court
12 August 2022
2,261 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to let a late appeal proceed because the lawyer's excuse for the delay was contradicted by the court record.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) disposed of a Notice of Motion dated January 19, 2021 by the Petitioner, Joseph Kasena Yeri, seeking leave to appeal out of time against a judgment delivered on November 5, 2020 by Hon JO Olola declaring his petition res judicata, and in the alternative stay of proceedings pending appeal. The Petitioner attributed the delay of over two months to ignorance of the judgment and the demise of his advocate, Mr Gunga of Gunga and Company Advocates, invoking Article 50 and Article 159(2)(d) of the Constitution. The Interested Parties opposed, contending the delay was inordinate and unexplained, that the Applicant and his counsel were in fact present when judgment was delivered, that the advocate died on December 27, 2020 after the statutory 14-day period under Rule 75 of the Court of Appeal Rules had lapsed, and that no draft memorandum of appeal was annexed. The court, applying the principles in Leo Sila Mutiso v Hellen Wangari Mwangi and Muring Company Ltd v Archdiocese of Nairobi Registered Trustees, found the explanation for delay to be founded on falsehood and amounting to half-truths, found no demonstration of an arguable appeal, and held the stay prayer superfluous in the absence of a subsisting appeal. The application was dismissed with costs to the Interested Parties.

Key legal issues

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01

Whether the Applicant gave a sufficient and plausible explanation for the delay of 67 days (or thereabouts) in lodging the Notice of Appeal

Holding

The court found the delay unexplained and inexcusable. The claim that judgment was delivered in the parties' absence was contradicted by the record showing counsel holding brief was present; the death of advocate Mr Gunga occurred on December 27, 2020, after the statutory period had lapsed and could not explain the delay.

Reasoning

The notice of appeal was due by November 20, 2020. The court record showed judgment was delivered in open court in the presence of all parties, so the Applicant's assertion was a falsehood. The advocate's demise post-dated the lapse of time. Half-truths disentitled the Applicant to the exercise of the court's discretion.

p. 5
02

Whether the intended appeal was arguable

Holding

The court found the Applicant had not demonstrated arguability because no draft Notice of Appeal or draft Memorandum of Appeal was annexed to the application.

Reasoning

The Applicant asserted the intended appeal raised arguable issues but placed no draft memorandum of appeal before the court to enable it assess the chances of success. Without that material the court could not find the discretion ought to be exercised in the Applicant's favour.

p. 5
03

Whether stay of proceedings pending appeal ought to issue

Holding

Refused. The prayer was not addressed in submissions and there was no pending appeal; a stay presupposes a subsisting appeal.

Reasoning

The Applicant neither addressed the stay limb in submissions nor demonstrated an arguable and non-frivolous intended appeal that would be rendered nugatory. With no appeal on file, a stay pending appeal was a legal impossibility and superfluous.

p. 5

Legal principles established

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  • The decision whether or not to extend time for appealing is discretionary and guided by the length of delay, reason for delay, chances of success of the appeal and prejudice to the respondent.
  • There is no mathematically fixed period that constitutes inordinate delay; it depends on the circumstances of each case and the plausibility of the explanation given.
  • A party whose explanation for delay is founded on falsehood cannot invoke the court's discretion in his favour.

Court orders

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  1. 1.The application dated January 19, 2021 is dismissed
  2. 2.Costs of the application are awarded to the Interested Parties

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75(1) and 75(2)
  • Court of Appeal RulesRule 75(20)
  • Appellate Jurisdiction ActSection 7
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure RulesOrder 21 [1]

Cases cited (15)

  • Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited
    [2020] eKLR
  • Joseph Gitai Gachau & another v Pioneer Holdings [A] Limited & 2 others
  • Josephine Koki Raymond v Philomena Kanini Maingi, personal representative of Maingi Musila Mutava {deceased} and another
    [2018] eKLR
  • Damji Pragji Mandavia v Sara Lee Household & Body Care Limited
    NBI Civil App No 345 of 2004
  • Edward Njane Nganga & another v Damaris Wanjiku Kamau & another
    [2016] eKLR
  • Loise Chemutai Ngurule & Another v Winfred Leshwari Kimung'en & 2 Others
    (2015) eKLR
  • Stanley Kahoro Mwangi & 2 others v Kanyamwi Trading Company Limited
    (2015) eKLR
  • Leo Sila Mutiso v Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR (Supreme Court Application No 16 of 2014)
  • George Kagima Kariuki & 2 others v George M Gichimu & 2 others
    [2014] eKLR
  • County Executive of Kisumu v County Government of Kisumu & 8 others
    [2017] eKLR
  • Athuman Nusura Juma v Afwa Mohamed Ramadhan
    CA No 227 of 2015
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    [2007] eKLR
  • Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees
    Civil Application No 190 of 2019
  • Board of Governors, Moi High School Kabarak & Another v Malcolm Bell
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act (power of the High Court to extend time) and Rule 75 of the Court of Appeal 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, "Yeri v Registrar of Titles Mombasa & 2 others; Gao Yu International Company Limited & 4 others (Interested Parties) (Environment and Land Constitutional Petition 11 of 2013) [2022] KEELC 3618 (KLR)", Case Analysis (2022). ELC No 11 of 2013 (formerly Malindi Petition No 11 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3618/eng@2022-08-12

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