Kemei & another v Kiobe (Environment and Land Appeal 14 of 2022) [2023] KEELC 61 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed evicted land occupants to revive a late appeal, ruling that filing before seeking extension of time is not fatal.
What this practically means
#Executive summary
#Key legal issues
#Whether the five-month delay in filing the appeal was satisfactorily explained to warrant extension of time
The delay was amply explained by the first applicant's hypertension, illness after eviction, financial constraints and the Covid-19 pandemic
The court applied the Salat principles: period and reason for delay, prejudice and chances of success. The applicants were evicted from land they had occupied for over 23 years pursuant to a decree in a suit to which they were not parties; the first applicant, who financed the litigation, fell ill and produced medical chits. The court found good and sufficient cause and no prejudice to the respondent, who retained possession of the property.
Whether an appeal filed out of time before extension of time is sought is fatally defective
No; the appeal can be deemed properly filed once extension of time is granted
Relying on Charles Karanja Karu v Charles Muigwa and Gerald M' Limbine v Joseph Kangangi, the court held that section 79G permits an appellant to file the appeal and simultaneously seek admission out of time; requiring prior permission before filing a non-existent appeal would itself be an abuse of process.
Whether stay of execution of the ruling striking out the suit should be granted
Yes; although no positive order was struck, the peculiar circumstances justified stay
The court noted that the applicants' suit was struck out with no positive order, so only execution on costs was in issue, which ordinarily does not amount to substantial loss. However, given the need to interrogate why the applicants occupied the land for over 23 years and were evicted under a decree in a different case, stay was warranted.
Legal principles established
#- An appeal filed out of time may be admitted as properly on record once extension of time is granted; the intending appellant need not first seek permission before filing the appeal
- Extension of time is an equitable discretionary remedy requiring explanation of delay, consideration of prejudice and chances of success
Court orders
#- 1.Stay of execution of the ruling of November 24, 2021 granted pending hearing and determination of the appeal
- 2.Time for appealing against the ruling of November 24, 2021 extended
- 3.The appeal filed on April 26, 2022 deemed to have been properly filed pursuant to the extended period
- 4.The first application (seeking striking out of the appeal) dismissed
- 5.Costs of the two applications to abide the outcome of the appeal
- On appeal from
- Chief Magistrate's Court, Eldoret
- CM E&L No 72 of 2020
- Jurisdiction invoked
- Appellate jurisdiction over appeals from the magistrates' court in environment and land matters; application under extension of time and stay provisions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kemei & another v Kiobe (Environment and Land Appeal 14 of 2022) [2023] KEELC 61 (KLR)", Case Analysis (2023). Eldoret CM E&L Case No 72 of 2020 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/61/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.