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ELCPartially AllowedApplication by Notice of Motion dated November 29, 2022 (ELC Appeal from Kyuso SRM Land Case No. E003 of 2022)· [2023] KEELC 647 (KLR)

Geofirey Mugambi Musee v Peter Makunyi Musee

Environment and Land Court
7 February 2023
1,969 words in judgment
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The bottom line

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The Environment and Land Court in Kitui gave a landowner 14 more days to appeal a land judgment he says he never knew about, stressing that courts should not lock parties out.

What this practically means

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Executive summary

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The applicant, Geofirey Mugambi Musee, moved the Environment and Land Court at Kitui by Notice of Motion dated November 29, 2022 seeking extension of time to file a Memorandum of Appeal against a judgment of Hon. John Aringo, Senior Resident Magistrate, delivered on July 27, 2022 in Kyuso SRM Land Case No. E003 of 2022, together with an injunction restraining the respondent, his step-brother Peter Makunyi Musee, from interfering with Plot No. 993 Kaiviria Adjudication Section. The applicant deposed that he was unaware of the trial suit, which was heard as formal proof after interlocutory judgment, and only learnt of it when the respondent entered the land and showed him the judgment. The respondent countered that the applicant was served through family members by a process server and deliberately ignored the suit, and that the land fraudulently registered in the applicant's name belongs to their father. In a ruling delivered on February 7, 2023, Hon. L. G. Kimani, J, applied the Leo Sila Mutiso parameters and held that the roughly four-month delay was not excessive, that issues of service of summons, service of hearing notice, consent of the Land Adjudication Officer and entry of interlocutory judgment were arguable, and that Article 159(2)(d) and the overriding objective favoured hearing the applicant on appeal. The application was allowed: time to file and serve the Memorandum of Appeal was extended by 14 days, the injunction prayer was declared spent, and each party was ordered to bear their own costs of the application.

Key legal issues

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01

Extension of time to appeal under Section 79G of the Civil Procedure Act

Holding

The application for extension of time has merit; the delay of about four months was not excessive, the reason given (lack of awareness of the suit) raised a strong issue on service, and the intended appeal raised arguable issues

Reasoning

The court applied the Leo Sila Mutiso factors: delay of about four months was not excessive; the applicant's claim of ignorance of the suit raised service issues meriting consideration on appeal; the service of summons, hearing notice, consent of the Land Adjudication Officer and entry of interlocutory judgment were all strong issues. Article 159(2)(d) and the overriding objective supported hearing the applicant on appeal.

p. 4
02

Whether the applicant was served with summons and court documents

Holding

Left as an issue for the intended appeal; the process server's affidavit of service indicated service on family members while the applicant denied knowledge of the suit

Reasoning

The respondent annexed an affidavit of service sworn by Nicholus Mwenga Kimwele stating the applicant was served on family members after being traced to Meru town and later confirmed receipt. The applicant maintained he only learnt of the suit when the respondent entered the land. The court held service of summons was a strong issue for determination at the appeal.

p. 4
03

Injunction pending hearing of the application

Holding

The prayer was spent as it sought injunction pending determination of the application, which had been determined

Reasoning

The court noted the prayer was worded as injunction pending the hearing and determination of the application itself. Since the court was delivering its ruling on the application, the interim relief had served its purpose and no continuing injunction was granted; the applicant was left to pursue his appeal.

p. 4

Legal principles established

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  • In deciding whether to extend time for filing an appeal, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent
  • No person who has approached the court seeking an opportunity to ventilate their grievances fully should be locked out

Court orders

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  1. 1.The application dated November 29, 2022 be and is hereby allowed
  2. 2.The time within which to file and serve a Memorandum of Appeal against the judgment of the Senior Resident Magistrate's Court delivered on July 27, 2022 in Kyuso SRM Land Case No. E003 be extended by a period of 14 days from the date of the ruling
  3. 3.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 79G
  • Civil Procedure Act, Cap 21Section 1A
  • Civil Procedure Act, Cap 21Section 3A
  • Civil Procedure RulesOrder 5 Rule 8
  • Constitution of Kenya (2010)Article 159(2)(d)

Cases cited (4)

  • Leo Sila Mutiso v Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Edith Gichugu Koine vs. Stephen Njagi Thoithi
    [2014] eKLR
  • Charles Karanja Kiiru v Charles Githinji Muigwa
    [2017] eKLR
  • Stelco Corporation Ltd. vs Susan A. Mudembwa
    2021 eKLR
On appeal from
Senior Resident Magistrate's Court at Kyuso
Land Case No. E003 of 2022
Jurisdiction invoked
Section 79G of the Civil Procedure Act, Cap 21 (extension of time to appeal from a subordinate court to the High Court); Sections 1A and 3A Civil Procedure Act; Article 159(2)(d) of the Constitution

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, "Geofirey Mugambi Musee v Peter Makunyi Musee", Case Analysis (2023). Application by Notice of Motion dated November 29, 2022 (ELC Appeal from Kyuso SRM Land Case No. E003 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/647/eng@2023-02-07

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