Kariuki & 2 others (as trustees of Kihinganda Self Help Group) v Kakuzi Limited & 3 others; National Land Commission (Interested Party)
The bottom line
#Kenya's Environment and Land Court allowed Kakuzi PLC to appeal out of time, confirming courts can excuse missed appeal deadlines when there's a good explanation.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has jurisdiction to extend time for filing an appeal from its own ruling
The ELC has jurisdiction under section 7 of the Appellate Jurisdiction Act, order 50 rule 5 of the Civil Procedure Rules and section 95 of the Civil Procedure Act to enlarge time for lodging an appeal.
The court noted that appeals from High Court/ELC decrees and orders lie to the Court of Appeal under section 66 of the Civil Procedure Act, with a 14-day period under order 43(3) of the Civil Procedure Rules and rule 75(2) of the Court of Appeal Rules. Where time has lapsed, the power to extend is donated by section 7 of the Appellate Jurisdiction Act and section 95 of the Civil Procedure Act, replicated by order 50 rule 5.
Whether the applicant explained the delay and satisfied the Salat principles
The court found the ruling date had indeed changed and the applicant had given a sufficient explanation for the delay, warranting extension.
Applying the Salat and First American Bank principles, the court examined the explanation for the delay, the arguability of the appeal and prejudice to respondents. It noted the ruling date did change though a notice was issued, accepted the applicant's explanation, found arguable points of law in the draft memorandum, and held the respondents would not be prejudiced as they could be compensated by costs.
Whether the intended appeal is arguable
The draft memorandum of appeal raised arguable points of law deserving judicial determination.
The applicant annexed a draft memorandum of appeal raising eight grounds. Applying the Mitubell Welfare Society test, the court held that a single arguable point suffices and found the applicant had raised arguable points of law, so it would be unjust to deny the applicant its day in court on appeal.
Legal principles established
#- An arguable appeal need only raise a single legitimate point deserving judicial determination
- Extension of time is an equitable remedy available only to a deserving party at the court's discretion
Court orders
#- 1.Leave granted to the 2nd defendant/applicant to file appeal out of time against the ruling delivered on May 12, 2022, within 14 days from the date of the ruling
- 2.Extension of time granted to file the intended appeal within fourteen (14) days from the date of the ruling
- 3.In default, the leave and orders granted to lapse automatically
- 4.Plaintiffs/respondents entitled to costs of the application
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act; order 50 rule 5 and section 95 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki & 2 others (as trustees of Kihinganda Self Help Group) v Kakuzi Limited & 3 others; National Land Commission (Interested Party)", Case Analysis (2023). Environment & Land Case 18 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16717/eng@2023-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.