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ELCPartially AllowedEnvironment and Land Appeal 33 of 2021· [2023] KEELC 17002 (KLR)

Wambua v Syengo & 3 others

Environment and Land Court of Kenya
18 April 2023
LKL. G. Kimani
3,247 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court gave a delayed appellant seven extra days to file his appeal notice, but refused extra time for the full appeal record.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitui (L. G. Kimani, J) determined the Plaintiff's application dated 9 December 2022 seeking extension of time to file and serve a Notice of Intention to Appeal against the court's judgment of 8 November 2022 dismissing his suit. The applicant explained a 31-day delay on the ground that his former advocates never informed him of the judgment, which he discovered on 2 December 2022. The 1st and 2nd Defendants and the 3rd Defendant opposed, contending the application was incompetent, premised on the wrong provision (Section 7 of the Appellate Jurisdiction Act rather than Order 50 rule 6 of the Civil Procedure Rules), and that the delay was inexcusable. The court held that Section 7 of the Appellate Jurisdiction Act confers jurisdiction on the ELC to extend time for filing a Notice of Appeal, since appeals from the ELC lie to the Court of Appeal and the notice requirement is under Rule 77 of the Court of Appeal Rules, not the Civil Procedure Rules; in any event, failure to cite the correct provision is cured by Order 51 Rule 10(1). Applying the established factors (length and reason for delay, arguability, prejudice), the court found the delay not unreasonable, the counsel's mistake pardonable, and no prejudice demonstrated. It allowed the application, extending time by seven days, but refused the request, made only in submissions, to extend time for filing the record of appeal, holding the applicant bound by his pleadings and Section 7 not covering records of appeal. Costs were awarded to the Respondents.

Key legal issues

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01

Jurisdiction to extend time for filing Notice of Appeal

Holding

Section 7 of the Appellate Jurisdiction Act applies; the High Court in that provision includes the Environment and Land Court, and Order 50(6) of the Civil Procedure Rules does not govern notices of appeal

Reasoning

Appeals from the ELC lie to the Court of Appeal, and the notice of appeal requirement is under Rule 77 of the Court of Appeal Rules, not the Civil Procedure Rules. Following Munyao J in Loise Chemutai Ngurule, Section 7 needs only literal interpretation and confers power on the High Court construed to include the ELC. Even a wrong provision is cured by Order 51 Rule 10(1).

02

Whether the delay of 31 days was excusable and extension should be granted

Holding

The delay was not unreasonable, the reason (failure of former advocates to inform the applicant of the judgment) was plausible, and no prejudice to Respondents was demonstrated; extension granted for 7 days

Reasoning

Applying the Leo Sila Mutiso and Edith Gichugu Koine factors (length of delay, reasons, chances of success, prejudice), the court found the 31-day delay not inordinate, the counsel's mistake pardonable per Kenya Airports Authority v Mutungi, and held no person seeking to ventilate grievances should be locked out. Absence of a draft memorandum of appeal did not defeat the application.

p. 6
03

Extension of time to file the record of appeal

Holding

Refused; the relief was not sought in the application and Section 7 of the Appellate Jurisdiction Act does not cover records of appeal

Reasoning

The applicant raised the point only in submissions, which cannot substitute for a substantive prayer. Section 7 empowers extension only for giving notice of intention to appeal, applying for leave to appeal, or a certificate that the case is fit for appeal. Rule 84 of the Court of Appeal Rules already fixes the 60-day period.

p. 6

Legal principles established

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  • Section 7 of the Appellate Jurisdiction Act confers jurisdiction on the Environment and Land Court to extend time for giving notice of intention to appeal from its own judgment
  • Failure to quote the correct statutory provision in an application is not fatal, per Order 51 Rule 10(1) of the Civil Procedure Rules
  • A party cannot by submissions obtain a substantive order not sought in the application

Court orders

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  1. 1.The time within which the Plaintiff/Applicant is to file and serve a Notice of Intention to Appeal against the Judgment delivered on 8-11-2022 is extended by a period of seven (7) days from the date of the ruling
  2. 2.Costs of the application are awarded to the Respondents

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 50 rule 6; Order 50(4); Order 51 Rule 10(1) and (2)
  • Court of Appeal Rules, 2010Rule 75(2); Rule 82
  • Court of Appeal Rules (2022)Rules 77(1) and (2); Rule 84; Rule 118
  • Environment and Land Court ActSections 13(7) and 19(2)

Cases cited (14)

  • First American Bank of Kenya Ltd - Gulab P. Shah & 2 others
    Nairobi Milimani HCCC No. 2225 of 2000 (2002) 1 EA

    Factors for grant of extension of time

  • Hamam Singh & others vs Mistri
    (1971) EA 122

    Shifting blame to former advocates lacks legal backing

  • Kenya Airport Authority vs Timothy Nduvi Mutungi
    (2014) eKLR

    Counsel's mistake in communicating judgment is pardonable; inherent jurisdiction to extend record of appeal time

  • Edward Njane Ng'anga & Another vs Damaris Wanjiku Kamau & Another
    (2016) eKLR

    Jurisdiction to hear the appeal / extension of time

  • Loise Chemutai Ngurule & Another v. Winfred Leshwari Kimung'en & 2 Others
    (2015) eKLR

    Section 7 of the Appellate Jurisdiction Act includes the ELC for extending time to file Notice of Appeal

  • Nicholas Kiptoo Koris arap Salat vs IEBC & 7 others
    (2014) eKLR

    Extension of time principles; delay not inordinate; no prejudice shown

  • Samuel Mwaura Muthumbi vs Josephine Wanjiru Ngugi & Another
    (2018) eKLR

    Extension of time principles

  • Multiple Hauliers v Enock Bilindi Musundi & 2 others
    (2021) eKLR

    Inexcusable delay reasons

  • Ngunjiri v Mbugua & Another
    (2021) KECA 22 (KLR) (23rd September 2021)

    Inexcusable and unsatisfactory reasons for delay

  • Trimborn Agricultural Engineering Limited v David Njoroge Kabaiko & another
    [2000] eKLR

    Section 7 gives the High Court discretionary power to extend time to file notice of appeal

  • Edith Gichugu Koine vs. Stephen Njagi Thoithi
    [2014] eKLR

    Factors for extension of time: delay, reasons, prejudice, public importance

  • Charles Karanja Kiiru v Charles Githinji Muigwa
    [2017] eKLR

    Factors must be consonant with the overriding objective

  • Stecol Corporation Limited v Susan Awuor Mudemba
    [2021] eKLR

    Courts excuse parties where counsel procrastinate and delay is not inordinate; no prejudice shown

  • Leo Sila Mutiso v Hellen Wangari Mwangi
    [1999] 2 EA 231

    Parameters for extension of time: length and reason for delay, chances of success, prejudice

Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act (CAP 9), read with Article 159 of the Constitution and Sections 1A, 1B and 3A 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, "Wambua v Syengo & 3 others", Case Analysis (2023). Environment and Land Appeal 33 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17002/eng@2023-04-18

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