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ELCDismissedEnvironment and Land Miscellaneous Application E014 of 2022· [2023] KEELC 15659 (KLR)

Mucece (Suing on behalf of the Estate of Mwamamba M’Mutuambugu) v Samwel & 3 others

Environment and Land Court
22 February 2023
1,108 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to let an estate appeal late because it never explained the four-month delay — an arguable appeal alone is not enough.

What this practically means

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Executive summary

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The applicant, Joanina Mucece, suing on behalf of the estate of Mwamamba M'Mutuambugu, moved the Environment and Land Court at Meru by Notice of Motion dated May 23, 2022 under section 79G of the Civil Procedure Act seeking leave to file an appeal out of time against the ruling of Hon J Irura in Nkubu Civil Case No 123 of 2014 delivered on December 15, 2021. Her supporting affidavit recounted the history of the suit, attached letters of administration, official searches on two land parcels, prior orders, the impugned ruling, a consent in Meru CMCC No 370 of 2008 and a draft memorandum of appeal, and asserted an arguable appeal with high chances of success. The 1st and 4th respondents opposed through a replying affidavit of Moffat Kimathi Samwel, contending that the applicant had not demonstrated why she failed to appeal within the statutory period. CK Yano J framed a single issue: whether the court should enlarge time to allow filing of the memorandum of appeal out of time. The court noted the 30-day period under section 79G had expired around mid-January 2022 and the application was filed about four months late. Holding that the discretion under sections 79G and 95 must be exercised judiciously and only upon sufficient cause, the court found the applicant had given no reason for the delay, merely the history of the matter and an assertion of an arguable appeal. The delay was held inordinate and unexplained. The Notice of Motion was dismissed with costs to the respondents.

Key legal issues

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01

Whether the applicant demonstrated good and sufficient cause for the delay in filing the appeal

Holding

The application was dismissed because the applicant gave no explanation for the delay, only the history of the suit and an assertion of an arguable appeal

Reasoning

The ruling appealed against was delivered on December 15, 2021 and the 30-day period under section 79G expired in mid-January 2022. The application was filed on May 23, 2022, a delay of about four months. The applicant's supporting affidavit recounted the history of the matter and asserted an arguable appeal but offered no reason for missing the statutory period. The court held that an arguable appeal alone does not satisfy section 79G; the applicant bore the burden of explaining the delay, which she failed to discharge.

p. 2

Legal principles established

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  • Leave to appeal out of time is discretionary and must be exercised judiciously upon defined principles, granted only where sufficient cause is shown

Court orders

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  1. 1.The Notice of Motion dated May 23, 2022 is dismissed with costs to the respondents

Authorities

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Legislation

  • Civil Procedure Actsection 79G
  • Civil Procedure Actsection 78G (as quoted; apparently intended as 79G)
  • Civil Procedure Actsection 95
On appeal from
Nkubu (magistrates' court)
Nkubu Civil Case No 123 of 2014
Jurisdiction invoked
Section 79G of the Civil Procedure Act (leave to appeal out of time), read with section 95

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, "Mucece (Suing on behalf of the Estate of Mwamamba M’Mutuambugu) v Samwel & 3 others", Case Analysis (2023). Environment and Land Miscellaneous Application E014 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15659/eng@2023-02-22

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