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ELCAllowedEnvironment and Land Miscellaneous Application 16 of 2021· [2022] KEELC 12751 (KLR)

Mureithi & another v Mimano

Environment and Land Court
28 September 2022
858 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a one-day-late appeal because waiting for certified proceedings was a valid reason for the delay.

What this practically means

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Executive summary

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The applicants, Rose Muruthi Mureithi and Esther Gathoni Njunge, moved the Environment and Land Court at Nyeri by notice of motion dated November 8, 2021 under section 79G of the Civil Procedure Act seeking an extension of time to file an appeal against the judgment in Nyeri MCL & E Case No 3 of 2020 delivered on September 17, 2021. They explained that they applied for the proceedings and judgment on September 20, 2021, but these were only certified ready on October 18, 2021, by which time the statutory period for filing an appeal had lapsed by one day. The respondent opposed, arguing that no reason justified the exercise of the court's discretion, that under Order 42 rule 1 of the Civil Procedure Rules an appeal is instituted by a memorandum of appeal without need for the proceedings, and that the application was made in bad faith to delay his efforts to sell land he had owned since 1991. Applying the Supreme Court's factors in Salat v IEBC, J. O. Olola, J held that although an appeal is by memorandum of appeal, the applicants legitimately needed the typed proceedings and judgment to make an informed decision on the grounds of appeal. The one-day delay was thus explained. The court allowed the application and granted the applicants 14 days to file and serve the memorandum of appeal, with costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Whether waiting for certified proceedings and judgment constitutes a reasonable explanation for delay in filing an appeal under section 79G

Holding

Yes - an applicant may reasonably await the typed proceedings and judgment before filing a memorandum of appeal, since the memorandum is premised on the evidence and judgment.

Reasoning

The court accepted that although an appeal is instituted by a memorandum of appeal under Order 42 rule 1, the memorandum must be premised on the evidence adduced and the judgment. The applicants could not be faulted for waiting for the proceedings to make an informed choice on the grounds of appeal. The delay was only one day and was explained by the proceedings being certified ready on October 18, 2021.

p. 2

Legal principles established

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  • Extension of time is an equitable discretionary remedy available only to a deserving party who must lay a basis and explain any delay.

Court orders

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  1. 1.Extension of time granted; applicants granted 14 days within which to file and serve the memorandum of appeal
  2. 2.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure Actsection 79G
  • Civil Procedure RulesOrder 42 rule 1

Cases cited (1)

  • Salat v Independent Electoral & Boundaries Commission & 7 Others
    (2014) eKLR

    Factors the court considers in an application for extension of time.

Jurisdiction invoked
Section 79G of the Civil Procedure Act

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, "Mureithi & another v Mimano", Case Analysis (2022). Environment and Land Miscellaneous Application 16 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12751/eng@2022-09-28

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