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ELCAllowedNotice of Motion dated March 23, 2022 (Kakamega ELC)· [2023] KEELC 25 (KLR)

Maina v Mwale (Environment & Land Miscellaneous Case E009 of 2022) [2023] KEELC 25 (KLR)

Environment and Land Court
17 January 2023
DOD. O. Ohungo
1,122 words in judgment
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The bottom line

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Kenya's Kakamega Environment and Land Court allowed a self-represented litigant to appeal three months late, because court delays in typing proceedings explained the delay.

What this practically means

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Executive summary

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By notice of motion dated March 23, 2022, the applicant sought leave to file an appeal out of time against the judgment of Hon F Makoyo PM delivered on November 18, 2021 in Butere SRM ELC Number 66 of 2018, with costs to abide the outcome of the appeal. The applicant explained that he was dissatisfied with the subordinate court's decision but delayed filing because typed proceedings, requested and paid for on November 22, 2021, were only ready for collection on March 24, 2022; he also cited his status as a self-represented litigant before the subordinate court. He had filed his memorandum of appeal on March 17, 2022 as Kakamega ELC Appeal No E005 of 2022. The respondent opposed through grounds of opposition, arguing insufficient cause, defectiveness, and material non-disclosure. The court, applying the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat v IEBC, noted that the appeal was due by December 18, 2021 under Section 16A(1) of the Environment and Land Court Act, and that there was a three-month delay. It found the delay explained by the certificate of delay and the applicant's self-representation, which the respondent did not rebut by affidavit, observing that a self-represented litigant may not always be as meticulous as counsel. The court found the application and appeal filed without undue delay and granted leave, admitted the appeal out of time deeming it filed within time, and ordered costs of the motion to be in the appeal.

Key legal issues

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Whether sufficient cause was shown for extending time to file the appeal

Holding

The court found a sufficient basis to exercise discretion in the applicant's favour, noting the three-month delay was partly explained by the delay in obtaining typed proceedings and his self-represented status

Reasoning

The court applied the Salat principles. The applicant requested and paid for typed proceedings on November 22, 2021, which were only ready on March 24, 2022; the application was filed a day later. The respondent filed no affidavit to challenge the claim of self-representation. Both the appeal and the application were found to have been filed without undue delay.

p. 3

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the discretion of the court, and the applicant bears the burden of laying a basis and explaining the delay
  • A self-represented litigant may not always be as meticulous as counsel, a consideration relevant to assessing explanations for delay

Court orders

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  1. 1.Leave granted to the applicant to file an appeal against the judgment and decree delivered on November 18, 2021 in Butere SRM ELC Number 66 of 2018, out of time
  2. 2.Kakamega ELC Appeal No E005 of 2022, filed on March 17, 2022, admitted out of time and deemed to have been filed within time
  3. 3.Costs of the notice of motion dated March 23, 2022 to be in the appeal

Authorities

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Legislation

  • Magistrates’ Courts Act, 2015Section 9(a)
  • Environment and Land Court Act, 2011Section 26
  • Environment and Land Court Act, 2011Section 16A(1)
  • Environment and Land Court Act, 2011Section 16A(2)

Cases cited (4)

  • Kenya Railways Corporation v Erdemann Property Limited
    [2012] eKLR
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi - Civil Application No NAI 255 of 1997
    (unreported)
  • Equity Bank Limited v Richard Kerochi Ayiera
    [2020] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
On appeal from
Butere SRM Court (Environment and Land jurisdiction)
Butere SRM ELC Number 66 of 2018
Jurisdiction invoked
Section 16A(2) of the Environment and Land Court Act, 2011

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, "Maina v Mwale (Environment & Land Miscellaneous Case E009 of 2022) [2023] KEELC 25 (KLR)", Case Analysis (2023). Notice of Motion dated March 23, 2022 (Kakamega ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/25/eng@2023-01-17

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