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ELCAllowedNot stated in judgment (application dated 4.11.2022; appeal intended from Meru CM ELC No. 63 of 2019)· [2023] KEELC 590 (KLR)

John Maitima M'Mwarama v [Respondent]

Environment and Land Court
8 February 2023
685 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 let a late land appeal proceed after 89 days because the other side showed no real prejudice and the appeal had arguable points.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 4.11.2022 in which the applicant, John Maitima M'Mwarama, sought enlargement of time to file an intended appeal against a judgment delivered on 5.7.2022 in Meru Chief Magistrate's ELC No. 63 of 2019. The delay was about 89 days. The applicant deponed that he had instructed counsel to file an appeal but learned the time had expired on 5.9.2022, and asserted the respondent would suffer no prejudice not compensable by damages. The respondent opposed, arguing the delay was unexplained. The applicant relied on Sections 79G and 95 of the Civil Procedure Act and numerous authorities on extension of time. The court applied the principles in Nicholas Kiptoo Arap Korir Salat vs IEBC: the power is discretionary, requiring reasons for the delay, consideration of prejudice, and the extent of the delay. Although the supporting affidavit did not state reasons for the delay and the claim of lack of funds was unsupported by evidence, the court noted the respondent had not deponed to any prejudice arising from the delay, nor to any change in the status of the subject matter, and that the draft memorandum of appeal raised arguable points. Relying also on Joseph Schmaderer vs Serah Njeri Ngene (citing Diplack Kenya Ltd vs William Muthama Kitonyi) on guarding against sympathy, the court nonetheless allowed the application so the applicant could exercise the constitutional right of appeal. It ordered the memorandum of appeal to be filed and served within 14 days, with costs to the respondent in any event.

Key legal issues

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01

Sufficiency of explanation for the 89-day delay

Holding

The supporting affidavit did not state reasons for the delay; counsel mentioned lack of funds, but no evidence of the applicant's financial status was placed before the court. Nevertheless, the absence of an affidavit of prejudice from the respondent and the presence of arguable points tipped the balance in favour of extension.

Reasoning

The court applied the Salat principles: reasons for delay, prejudice to the opposite party, and the length of the delay. It acknowledged that the affidavit failed to state reasons and that the financial-hardship claim was unsupported. However, the respondent filed no affidavit showing what prejudice the delay occasioned, and the draft memorandum of appeal raised arguable points, so the applicant was granted the opportunity to exercise the constitutional right of appeal.

p. 2
02

Prejudice to the respondent

Holding

The respondent did not demonstrate by affidavit any prejudice that would be suffered if the appeal were filed out of time.

Reasoning

The court noted that the respondent's opposition was confined to the assertion that the delay of 89 days was unexplained. No affidavit was filed stating what prejudice would be occasioned or whether the subject matter had changed status such that the delay prejudiced the respondent. Absent demonstrated prejudice, this Salat factor favoured the applicant.

p. 2
03

Arguability of the intended appeal

Holding

The draft memorandum of appeal raised some arguable points.

Reasoning

The court examined the attached draft memorandum of appeal and formed the view that it raised arguable points, which supported enlarging time so the applicant could exercise the constitutional right of appeal. This, combined with the absence of demonstrated prejudice to the respondent, justified allowing the application despite the unexplained delay.

p. 2

Legal principles established

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  • Extension of time is a discretionary power of the court, not a right of a party, exercisable upon satisfactory material; the court considers reasons for the delay, prejudice to the opposite party, and the extent of the delay.
  • The court must guard against being led by sympathy where there is no excuse for the delay.
  • Under Section 79G of the Civil Procedure Act the court may admit an appeal out of time if there are good reasons and sufficient cause shown.

Court orders

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  1. 1.The application dated 4.11.2022 is allowed
  2. 2.The memorandum of appeal to be filed and served within 14 days from the date of the order
  3. 3.Costs to the respondent in any event

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95

Cases cited (13)

  • Jaber Mohsen Ali & another vs Priscillah Boit and another
    (2014) eKLR
  • Richard Ncharpi Leiyagu vs IEBC and 2 others
  • Mbaki & others vs Macharia & another
    (2005) 2 E.A 206
  • Jaldesa Tuke Dabelo vs IEBC & another
    (2015) eKLR
  • Raila Odinga & 5 others vs IEBC & 3 others
    (2013) eKLR
  • Lemanken Aramata vs Harun Meitamei Lempaka & 2 others
    (2014) eKLR
  • Cherotich Sawe vs IEBC & 4 others
    (2015) eKLR
  • Equity Bank Ltd vs West Link Mbo Ltd
    (2013) eKLR
  • Board of Governors Moi High School Kabarak & another vs Malcom Bell
    (2013) eKLR
  • Joseph Schmaderer vs Serah Njeri Ngene
    (2021) eKLR
  • Vishva Stone Suppliers Co. Ltd vs RSR Stone (2006) Ltd
    (2020) eKLR
  • Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others
    (2014) eKLR
  • Diplack Kenya Ltd vs William Muthama Kitonyi
    (2018) eKLR
On appeal from
Chief Magistrate's Court at Meru (Environment and Land)
Meru No. Chief Magistrates ELC No. 63 of 2019
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act (discretion to admit an appeal filed out of time)

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, "John Maitima M'Mwarama v [Respondent]", Case Analysis (2023). Not stated in judgment (application dated 4.11.2022; appeal intended from Meru CM ELC No. 63 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/590/eng@2023-02-08

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