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ELCPartially AllowedEnvironment & Land Case 18 of 2021· [2023] KEELC 16717 (KLR)

Kariuki & 2 others (as trustees of Kihinganda Self Help Group) v Kakuzi Limited & 3 others; National Land Commission (Interested Party)

Environment and Land Court
28 March 2023
3,673 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Murang'a (L.N. Gacheru, J) determined an amended notice of motion dated December 19, 2022 by the 2nd defendant, Kakuzi PLC, seeking extension of time to file an intended appeal against the court's ruling of May 12, 2022, which had dismissed the applicant's application dated September 17, 2021 as sub judice and time barred. The applicant alleged it only learnt of the ruling on September 8, 2022 because the registry never issued a ruling notice, the ruling date having changed several times. The plaintiffs/respondents opposed, contending the court lacked discretionary jurisdiction, the application was brought under the wrong provisions, no sufficient cause for the delay was shown, and the claim of late discovery was false. The court canvassed the application by written submissions and framed two issues: whether time for lodging an appeal ought to be extended, and whether the appeal is arguable. Relying on section 7 of the Appellate Jurisdiction Act, section 95 of the Civil Procedure Act and order 50 rule 5 of the Civil Procedure Rules, the court found it had jurisdiction. Applying the Salat and First American Bank principles, it found the ruling date had indeed changed, that the draft memorandum of appeal raised arguable points of law, and that the respondents would suffer no prejudice not compensable by costs. The application was allowed: leave to appeal out of time was granted within 14 days, failing which the leave would lapse automatically, with costs of the application awarded to the plaintiffs/respondents.

Key legal issues

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01

Whether the court has jurisdiction to extend time for filing an appeal from its own ruling

Holding

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.

Reasoning

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.

p. 5
02

Whether the applicant explained the delay and satisfied the Salat principles

Holding

The court found the ruling date had indeed changed and the applicant had given a sufficient explanation for the delay, warranting extension.

Reasoning

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.

p. 7
03

Whether the intended appeal is arguable

Holding

The draft memorandum of appeal raised arguable points of law deserving judicial determination.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 2.Extension of time granted to file the intended appeal within fourteen (14) days from the date of the ruling
  3. 3.In default, the leave and orders granted to lapse automatically
  4. 4.Plaintiffs/respondents entitled to costs of the application

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 7
  • Civil Procedure Actsections 1A, 1B, 3A, 66, 79G, 95
  • Civil Procedure Rulesorder 43 rule 3(3), order 50 rules 5 and 6
  • Environment and Land Court Actsection 16A
  • Court of Appeal Rulesrule 75(2)

Cases cited (10)

  • Kenya Port Authority & another v Timothy Nduvi Mutungi
    (2014) eKLR

    Application to extend time for notice of intention to appeal under section 7 of the Appellate Jurisdiction Act from the High Court is competent

  • R v County Land Adjudication & Settlement Officer- Laikipia & another, ex-parte Kabaiga Kirangu Kimiri
    (2019) eKLR

    High Court jurisdiction to extend time for notice of appeal out of time; absence of prejudice to respondents

  • Stanley Kahoro Mwangi & 2 others v Kanyamwi Trading Co Ltd
    (2015) eKLR

    Powers on extension of time applications are discretionary and unfettered

  • Muri Mwaniki & Wamiti Advocates v Edward Mukundi Karanja & 2 others
    (2019) eKLR

    Absence of notice of delivery of ruling vitiates right to lodge appeal on time

  • Kenya Airports Authority v Mitubell Welfare Society
    (2014) eKLR

    Definition of an arguable appeal - a single arguable point suffices

  • Nyateko v Fredrick Omondi Oketch
    (2021) eKLR

    Statutory provisions clothing the court with discretion to grant leave to file appeal out of time

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    (2014) eKLR

    Principles governing exercise of discretion to extend time

  • Rufus Muriithi Nyaga v Juliet Wanja Ireri
    (2018) eKLR

    Length of delay is relevant; inordinate delay inexcusable and contrary to overriding objective

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No Nai 251 of 1997

    Factors in deciding whether to extend time for appealing

  • First American Bank of Kenya Ltd v Gulab P Shah & 2 others
    Nairobi (Milimani) HCCC No 2255 of 2000 [2002] 1 EA 65

    Factors for considering whether or not to enlarge time

Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act; order 50 rule 5 and section 95 of the Civil Procedure Act

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, "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.