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ELCPartially AllowedMeru CMCC No. ELC No. 212 of 2018 (application)· [2023] KEELC 47 (KLR)

Nteere (Suing as the legal representative of the Estate of Julius Nteere Muthamia) v Ndumba (Environment and Land Miscellaneous Application E037 of 2022) [2023] KEELC 47 (KLR)

Environment and Land Court
18 January 2023
574 words in judgment
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The bottom line

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A Kenyan court gave a late appellant more time to appeal but refused to pause execution of the judgment because no appeal was actually on file yet.

What this practically means

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Executive summary

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By a notice of motion dated October 17, 2022, the applicant sought extension of time to appeal out of time against a judgment delivered on August 4, 2022 in Meru CMCC No. ELC No. 212 of 2018, and stay of execution of the resulting decree. The applicant attributed the delay of about two and a quarter months to the typing and issuance of the judgment, having written on August 4, 2022 requesting a typed and certified copy, delivered to court on August 15, 2022, but did not clarify when the judgment was collected from the registry. The respondent, in a replying affidavit sworn November 8, 2022, blamed the applicant for the delay and viewed a delay of close to three months as inadvertently long. The court applied the Salat principles and the Thuita Mwangi considerations, and, citing Vishva Stone Suppliers, held that the law sets no maximum or minimum period of delay so long as a satisfactory explanation is given. It found the delay not inordinately long and the explanation not unreasonable, and granted the extension, directing that the memorandum of appeal be filed within 14 days. However, on stay of execution, the court found no pending appeal as required by Order 42 rule 6 of the Civil Procedure Rules, rendering the prayer premature and speculative, and no substantial loss was demonstrated per James Wangalwa; the stay was declined. There was no order as to costs. Orders accordingly.

Key legal issues

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01

Extension of time to appeal out of time

Holding

Delay of about two and a quarter months was not inordinately long and the explanation was not unreasonable; extension granted

Reasoning

The court applied the Salat and Thuita Mwangi principles. The applicant attributed the delay to typing and issuance of the judgment, having requested the certified judgment on August 4, 2022. Though the applicant did not show when the judgment was collected from the registry, the court was not persuaded the delay was inordinately long or the explanation unreasonable.

p. 2
02

Stay of execution pending appeal

Holding

Refused as premature and speculative since no appeal was on file and no substantial loss demonstrated

Reasoning

Under Order 42 rule 6 of the Civil Procedure Rules, stay pending appeal presupposes a pending appeal. None was on file. Additionally, no material was placed before the court demonstrating substantial loss as required by the James Wangalwa authority, so the application for stay failed.

p. 2

Legal principles established

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  • The court has unfettered discretion to extend time to appeal out of time, guided by the Salat principles: length of delay, reasons, extenuating circumstances, prejudice and public interest
  • The law sets no maximum or minimum period of delay; a satisfactory explanation unlocks the court's discretionary powers

Court orders

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  1. 1.Prayer for extension of time granted
  2. 2.Memorandum of appeal to be filed within 14 days from the date of the ruling
  3. 3.Prayer for stay of execution declined
  4. 4.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6

Cases cited (4)

  • Nicholas Arap Korir Salat vs IEBC & 7 others
    (2014) eKLR
  • Thuita Mwangi vs Kenya Airways Ltd
    (2003) eKLR
  • Vishva Stone Suppliers Co. Ltd vs RSR Stone (2006) Ltd
    (2020) eKLR
  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
On appeal from
Chief Magistrate's Court, Meru
CMCC No. ELC No. 212 of 2018
Jurisdiction invoked
Inherent discretion to extend time; Order 42 Civil Procedure 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, "Nteere (Suing as the legal representative of the Estate of Julius Nteere Muthamia) v Ndumba (Environment and Land Miscellaneous Application E037 of 2022) [2023] KEELC 47 (KLR)", Case Analysis (2023). Meru CMCC No. ELC No. 212 of 2018 (application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/47/eng@2023-01-18

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