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ELCDismissedEnvironment & Land Case E129 of 2015· [2023] KEELC 17204 (KLR)

Kilifi Colours & Dreams Limited v Soso Investments Limited & another

Environment and Land Court
27 April 2023
2,046 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 refused to let a company appeal two years late because it hid an earlier appeal notice and gave no good reason for the delay.

What this practically means

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Executive summary

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This ruling by E.K. Makori J of the Environment and Land Court at Malindi determined a notice of motion dated December 1, 2022 by the 1st defendant, Soso Investments Limited, seeking leave to appeal out of time against the judgment of Olola J delivered on February 19, 2021, which allowed the plaintiff's claim and dismissed the 1st defendant's counterclaim. The application was brought under Order 9 rule 9 and Order 51 of the Civil Procedure Rules and section 3 of the Civil Procedure Act, with the delay attributed to a handover between advocates after the erstwhile advocate was appointed a County Attorney. The 2nd defendant and the plaintiff opposed, arguing that jurisdiction lay exclusively with the Court of Appeal, that the delay of over two years was unexplained, and that execution had already been completed with the plaintiff in possession. The court first resolved the jurisdictional question, holding, following Loise Chemutai Ngurule and Kenya Airports Authority v Mutungi, that section 7 of the Appellate Jurisdiction Act confers concurrent jurisdiction on the High Court and courts of equal status, including the ELC, to extend time for filing a notice of appeal. On the facts, however, the court found the applicant had filed a notice of appeal on February 23, 2021 which it concealed, had taken no further steps, and had not sufficiently explained the delay of one year and ten months, invoking the clean hands maxim. The application was dismissed with costs.

Key legal issues

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01

Jurisdiction of the ELC to extend time for filing a notice of appeal to the Court of Appeal

Holding

The ELC, as a court of equal status to the High Court, has power under section 7 of the Appellate Jurisdiction Act to extend time for giving notice of intention to appeal; jurisdiction is concurrent with the Court of Appeal

Reasoning

Section 7 of the Appellate Jurisdiction Act explicitly empowers the High Court to extend time for giving notice of intention to appeal from a High Court judgment. Following Munyao J in Loise Chemutai Ngurule, the provision should be read literally, with 'High Court' including the Environment and Land Court under the Constitution of Kenya, 2010. Rule 4 of the Court of Appeal Rules is not exclusive, and Githinji JA in Kenya Airports Authority v Mutungi confirmed the application is properly made in the High Court.

p. 3
02

Whether the applicant deserved extension of time on the facts

Holding

No - the delay of one year and ten months was unexplained, the applicant concealed the notice of appeal it filed in February 2021 and took no further steps, and it did not come to court with clean hands

Reasoning

The applicant attributed the delay to the handover from its erstwhile advocate, who was appointed County Attorney, but that appointment occurred on October 26, 2022, long after the judgment of February 19, 2021. The applicant had filed a notice of appeal on February 23, 2021 but did not disclose it and took no further steps. Equity requires clean hands; the application was therefore devoid of merit and was dismissed with costs.

p. 4

Legal principles established

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  • The power to extend time for filing a notice of appeal is vested in both the High Court (and courts of equal status, including the ELC) and the Court of Appeal; one may approach either court
  • In deciding whether to extend time for appealing, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent

Court orders

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  1. 1.The notice of motion dated December 1, 2022 seeking leave to appeal out of time is dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 7
  • Civil Procedure RulesOrder 9 rule 9; Order 51
  • Civil Procedure Actsection 3
  • Court of Appeal Rulesrule 4
  • Constitution of Kenya, 2010

Cases cited (5)

  • Edward Njane Nganga & another v Damaris Wanjiku Kamau & another
    [2016] eKLR

    Adopting the holding that the High Court (and courts of equal status) may extend time for filing a notice of appeal

  • Loise Chemutai Ngurule & another v Winfred Leshwari Kimung'en & 2 others
    [2015] eKLR

    Section 7 Appellate Jurisdiction Act confers jurisdiction on the High Court including ELC to extend time; concurrent with Court of Appeal

  • Simon Towett Martim v Jotham Muiruri Kibaru
    Nakuru High Court, Miscellaneous Civil Application No 172 of 2004 (2004) eKLR

    Held rule 4 Court of Appeal Rules gave Court of Appeal exclusive jurisdiction - a view the court disagreed with

  • Kenya Airports Authority & another v Timothy Nduvi Mutungi
    Civil Application No Nai 165 of 2013 (UR 113/2013) (2014) eKLR

    Githinji JA: application for extension of time for notice of appeal is properly made in the High Court

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No Nai 255 of 1997 (unreported)

    Factors for extension of time: length of delay, reason, chances of success, prejudice to respondent

Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act (cap 9); Order 9 rule 9 and Order 51 of the Civil Procedure Rules; section 3 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, "Kilifi Colours & Dreams Limited v Soso Investments Limited & another", Case Analysis (2023). Environment & Land Case E129 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17204/eng@2023-04-27

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