Muriithi v Kanyingi (Environment & Land Miscellaneous Case E012 of 2022) [2023] KEELC 819 (KLR)
The bottom line
#The Environment and Land Court at Nyahururu allowed a litigant to appeal late, but ordered him to pay Kshs.20,000 in costs because his delay explanation was weak.
What this practically means
#Executive summary
#Key legal issues
#Whether the supplementary affidavit filed without leave should be struck out
The court declined to strike it out, deeming it filed with leave since it was filed before the Respondent's replying affidavit and no prejudice was suffered.
The court observed that the supplementary affidavit was filed before the Respondent filed her replying affidavit, and the Respondent was able to respond to its two annexures in the replying affidavit. Since the Respondent suffered no prejudice, striking out was unnecessary and the affidavit was deemed filed with leave.
Whether the Applicant made out a case for extension of time
Yes. Although the reasons for the delay (delay in obtaining copies and alleged illness) were not plausible, the intended appeal was not frivolous and the Respondent would suffer no prejudice beyond an award of costs, so the application was allowed.
The court applied the Thuita Mwangi v Kenya Airways / Mutiso v Mwangi factors. The delay of about 3 months was not inordinate. The explanation was unsatisfactory: no medical report showed incapacitation, and copies of judgment/proceedings were not required to lodge an appeal. However, the draft memorandum disclosed arguable issues and the Respondent's prejudice could be compensated by costs.
Costs of the application
The Applicant to bear costs of the application in a fixed sum because the application was occasioned by his own default in failing to render a reasonable explanation for the delay.
Although the Applicant succeeded in the application, the court found he did not render a reasonable explanation for the delay, meaning the application was occasioned by his own default. This good reason justified departing from the general rule that costs follow the event, awarding the Respondent fixed costs.
Legal principles established
#- In an extension of time application, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the prejudice to the Respondent.
- An appeal may be lodged without copies of the judgment or proceedings; only a memorandum of appeal and, later, a certified copy of the decree are required.
- Costs follow the event unless the court, for good reason, directs otherwise.
Court orders
#- 1.The Applicant is hereby granted leave to file his memorandum of appeal within 14 days from the date hereof.
- 2.The Applicant shall pay the Respondent costs of the application in the sum of Kshs.20,000/= within 14 days from the date hereof.
- 3.In the event of the Applicant defaulting in compliance with either (a) or (b) hereof, the leave granted shall lapse automatically.
- On appeal from
- Nyahururu Chief Magistrate's Court (MC ELC)
- Nyahururu MC ELC No 121 of 2019 – Jenifier Wamaitha Kanyingi v Leonard Githui Muriithi
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (Cap. 21) and Order 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muriithi v Kanyingi (Environment & Land Miscellaneous Case E012 of 2022) [2023] KEELC 819 (KLR)", Case Analysis (2023). Nyahururu MC ELC No 121 of 2019 (application dated August 30, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/819/eng@2023-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.