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ELCAllowedNot stated in judgment (arising from Homa Bay CM ELC No. 6 of 2020)· [2022] KEELC 3870 (KLR)

Amuka v Memba & 3 others (Environment and Land Appeal E003 of 2022) [2022] KEELC 3870 (KLR)

Environment and Land Court
27 July 2022
1,213 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 in Homa Bay allowed a 40-day late appeal, showing courts will forgive reasonable delays when good reasons and a credible appeal exist.

What this practically means

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Executive summary

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The applicant moved the Environment and Land Court at Homa Bay by notice of motion dated January 28, 2022, seeking leave to file an appeal against, and enlargement of time to appeal from, a ruling delivered on December 21, 2021 by Hon. TM Olando, Principal Magistrate, in Homa Bay CM ELC No. 6 of 2020. He attributed the delay in appealing to the lack of a typed ruling and his absence on duty which prevented him giving timely instructions to his advocates. The 1st respondent, acting in person, did not oppose the application and urged the court to allow it in the interest of justice. The 2nd respondent opposed, contending the application was incompetent, an abuse of process, and prejudicial to him as an innocent purchaser for value. After considering rival submissions, the court was guided by section 79G of the Civil Procedure Act on time for appealing, order 50 rules 4, 6, 7 and 8 on computation of time, and Articles 48, 50(1) and 25(c) of the Constitution on access to justice and fair hearing. Applying the Supreme Court's decision in Salat v IEBC that extension of time is a discretionary and equitable remedy, the court held the forty-day delay was not inordinate, the applicant had given sufficient reasons, and the memorandum of appeal raised triable issues including fair hearing. The court allowed the application, granted leave and enlargement of time, deemed the memorandum of appeal duly filed, and ordered that costs of the application abide the appeal.

Key legal issues

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01

Whether the forty-day delay in seeking leave and extension of time was inordinate

Holding

The delay was not inordinate and the reasons advanced justified granting the orders

Reasoning

The impugned ruling was delivered on December 21, 2021 and the application was lodged on February 1, 2022. The court computed roughly forty days of delay and, considering the applicant's lack of a typed ruling and his absence on duty, found it would be unsound to disallow the application.

p. 3
02

Whether the intended appeal raised triable issues warranting an extension of time

Holding

The memorandum of appeal raised triable issues including fair hearing, so the prospective appeal merited hearing on its merits

Reasoning

The court examined the draft memorandum of appeal dated January 28, 2022 and lodged February 7, 2022, and concluded it contained triable issues, including fair hearing, so the appeal should be admitted to hearing on merit.

p. 3
03

Whether extension of time is an entitlement or a discretionary remedy

Holding

Extension of time is not a right; it is a discretionary, equitable remedy for a deserving party, and the applicant gave sufficient reasons

Reasoning

Relying on the Supreme Court's decision in Nicholas Kiptoo Arap Korir Salat v IEBC, the court held that extension of time is discretionary and equitable. The applicant had given good and sufficient reasons, including the unavailability of the typed ruling and absence on duty.

p. 3

Legal principles established

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  • Extension of time is discretionary and equitable, not a right, but will be granted to a deserving party who gives good reasons
  • A party retains an entitlement to be heard in a prospective appeal despite some delay

Court orders

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  1. 1.Leave granted to the applicant/appellant to file the appeal against the ruling
  2. 2.Time enlarged for the applicant/appellant to file the appeal
  3. 3.The memorandum of appeal dated January 28, 2022 and lodged on February 7, 2022 deemed duly filed
  4. 4.Costs of the application to abide the appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42, Order 43 rule 1, Order 51 rule 1, Order 50 rules 4, 6, 7 and 8, Order 51 rule 16
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 75, Section 79G
  • Constitution of KenyaArticles 48, 50(1), 25(c)

Cases cited (8)

  • Charles Karanja Kiiru v Githinji Muigwa
    [2017] eKLR
  • Edith Gichungu Koine v Stephen Njagi Thoithi
    [2014] eKLR
  • Kamlesh Mansukhalal Damki Patni v Director of Public Prosecutions and 3 others
    [2015] eKLR
  • Joseph Michael Mwenja v Woolmatt Limited
    [2019] eKLR
  • Evans Kiptoo v Reinhard Omwoyo Omwoyo
    [2021] eKLR
  • Philip Keipto Chemwolo and another v Augustine Kubende
    [1986] eKLR
  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others
    [2014] eKLR
On appeal from
Homa Bay Chief Magistrate's Court (Environment and Land)
ELC No. 6 of 2020
Jurisdiction invoked
Orders 42, 43 rule 1 and order 51 rule 1 of the Civil Procedure Rules, 2010; section 79G of the Civil Procedure Act (Cap 21); Articles 48 and 50(1) of the Constitution

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, "Amuka v Memba & 3 others (Environment and Land Appeal E003 of 2022) [2022] KEELC 3870 (KLR)", Case Analysis (2022). Not stated in judgment (arising from Homa Bay CM ELC No. 6 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3870/eng@2022-07-27

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