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ELCPartially AllowedEldoret CM E&L Case No 72 of 2020 (appeal)· [2023] KEELC 61 (KLR)

Kemei & another v Kiobe (Environment and Land Appeal 14 of 2022) [2023] KEELC 61 (KLR)

Environment and Land Court
19 January 2023
1,842 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 allowed evicted land occupants to revive a late appeal, ruling that filing before seeking extension of time is not fatal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (E. O. Obaga J) dealt with two applications arising from an appeal against a ruling of Hon BK Kiptoo SRM delivered on November 24, 2021 in Eldoret CM E&L Case No 72 of 2020, in which the applicants' suit was struck out as res judicata. The first application, by the respondent, sought striking out of the appeal on the ground that it was filed out of time without prior enlargement of time. The second application, by the appellants, sought stay of execution of the ruling and enlargement of time to have the appeal deemed properly filed. The court framed two issues: whether extension of time should be granted and the appeal deemed properly filed; and whether stay of execution should issue. Applying the Supreme Court's principles in Salat v IEBC and the Court of Appeal's decision in Charles Karanja Karu v Charles Muigwa, the court held that the five-month delay was amply explained by the first applicant's hypertension, eviction from land occupied for over 23 years pursuant to a decree in a suit to which the applicants were not parties, financial constraints during the Covid-19 pandemic, and that the respondent would suffer no prejudice since the applicants were already evicted. The court also endorsed the position that an appeal filed out of time can be admitted as properly on record once extension is granted. The second application was allowed with stay granted and time extended; the first application was dismissed. Costs of both applications were made to abide the outcome of the appeal.

Key legal issues

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01

Whether the five-month delay in filing the appeal was satisfactorily explained to warrant extension of time

Holding

The delay was amply explained by the first applicant's hypertension, illness after eviction, financial constraints and the Covid-19 pandemic

Reasoning

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.

p. 3
02

Whether an appeal filed out of time before extension of time is sought is fatally defective

Holding

No; the appeal can be deemed properly filed once extension of time is granted

Reasoning

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.

p. 4
03

Whether stay of execution of the ruling striking out the suit should be granted

Holding

Yes; although no positive order was struck, the peculiar circumstances justified stay

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Stay of execution of the ruling of November 24, 2021 granted pending hearing and determination of the appeal
  2. 2.Time for appealing against the ruling of November 24, 2021 extended
  3. 3.The appeal filed on April 26, 2022 deemed to have been properly filed pursuant to the extended period
  4. 4.The first application (seeking striking out of the appeal) dismissed
  5. 5.Costs of the two applications to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure Actsection 79G
  • Civil Procedure Actsection 79B

Cases cited (4)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & another
    (2014) eKLR
  • Attorney General v Law Society of Kenya & another
    (2017) eKLR
  • Charles Karanja Karu v Charles Muigwa
    Civil Appeal No 71 of 2016
  • Gerald M' Limbine Vs. Joseph Kangangi
    (2009) eKLR
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

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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, "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.