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ELCAllowedEnvironment and Land Miscellaneous Application E009 of 2022· [2023] KEELC 16106 (KLR)

Chepkorir (Suing as the personal representative of the Estate of Paul Rotich Ngeny) v Yegon & another; Chepngeno & 3 others (Interested Parties)

Environment and Land Court
23 February 2023
MOM.C. Oundo
1,735 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court gave a widow 45 extra days to appeal because illness and her husband's death explained the delay.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (M.C. Oundo, J) determined an unopposed application dated May 30, 2022 by Nancy Chepkorir, suing as personal representative of the estate of Paul Rotich Ngeny, seeking leave to file an appeal out of time against a ruling of the Magistrate's Court at Kericho in ELC No. E022/2020 delivered on June 9, 2021, together with a stay of execution of the taxed costs pending the appeal. The lower court had upheld a preliminary objection that it lacked jurisdiction over what it characterized as a boundary dispute reserved for the Land Registrar under Section 18 of the Land Registration Act. The Applicant attributed her failure to appeal within the 30-day period under Section 79G of the Civil Procedure Act to the death of her husband (the original plaintiff who handled the matter personally), her substitution as plaintiff, and her chronic kidney condition requiring repeated hospitalization, evidenced by medical chits. She relied on the Salat principles on extension of time. The Respondents and Interested Parties, though served and granted leave, filed no responses or submissions. The court found that a plausible and satisfactory explanation for delay unlocks the court's discretionary favour, held that there was a valid and clear reason for the delay and no demonstrated prejudice, and allowed the application. Time to file the appeal was extended by 45 days, the status quo orders of September 26, 2022 were maintained pending the appeal, and the Applicant was ordered to bear the costs of the application.

Key legal issues

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01

Whether the Applicant established good and sufficient cause under Section 79G of the Civil Procedure Act to warrant extension of time to appeal out of time

Holding

The extension of time was allowed; the Applicant's bereavement, substitution as plaintiff after her husband's death, and chronic kidney illness constituted valid and clear reasons for the delay, and the Respondents demonstrated no prejudice.

Reasoning

The court applied the Salat principles on extension of time. The Applicant explained the roughly 10-11 month delay by her husband's death, her substitution as plaintiff, and her chronic kidney condition evidenced by medical chits marked 'NC5'. The Respondents and Interested Parties filed no response despite service, and thus demonstrated no prejudice. The court found a valid and clear reason upon which discretion could favourably be exercised and allowed the application.

p. 4

Legal principles established

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  • A plausible and satisfactory explanation for delay is the key that unlocks the Court's flow of discretionary favour in extension-of-time applications

Court orders

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  1. 1.Time within which the Applicant should file her Appeal is extended by forty-five (45) days from the date of the ruling
  2. 2.If the Applicant has not been supplied with the documents required to prepare the record of Appeal, the Applicant's Counsel to liaise with the Deputy Registrar and ensure the same are supplied within fifteen (15) days of the order
  3. 3.Should the Applicant not file the Appeal within the stipulated time, the window granted to file the Appeal shall automatically lapse
  4. 4.The interim orders of status quo granted on September 26, 2022 shall remain in force pending the hearing and determination of the Appeal
  5. 5.The Applicant shall bear the costs of the Application

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Land Registration ActSection 18

Cases cited (4)

  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & Others
    [2014] eKLR

    Principles governing the court's discretion to extend time for filing an appeal out of time

  • Paul Muthini Kimongo vs. Flex Pac international Limited
    [2019] eKLR

    That delay which is excusable is not inordinate

  • Ivita vs. Kyumba
    [1984] KLR 441

    Cited with approval in Kimongo on excusable/inordinate delay

  • Aviation Cargo Support Ltd vs St.Mark Freight Services Ltd
    [2014] eKLR

    Computation of delay from the last date the appeal ought to have been lodged to when extension is sought

On appeal from
Magistrate's Court at Kericho
ELC No. E022/2020
Jurisdiction invoked
Section 79G of the Civil Procedure Act (discretion to extend time for filing appeal from subordinate court)

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, "Chepkorir (Suing as the personal representative of the Estate of Paul Rotich Ngeny) v Yegon & another; Chepngeno & 3 others (Interested Parties)", Case Analysis (2023). Environment and Land Miscellaneous Application E009 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16106/eng@2023-02-23

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