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ELCAllowedEnvironmental and Land Originating Summons 36 of 2021 (Formerly Migori ELC No. 103 of 2017)· [2023] KEELC 18056 (KLR)

Abayo v Rege

Environment and Land Court of Kenya
19 June 2023
GOG. M. A. Ongondo
2,209 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 confirmed it can extend time to appeal its own judgments, then gave a litigant three weeks late a second chance.

What this practically means

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Executive summary

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This ruling by G.M.A Ongondo J of the Environment and Land Court at Homa Bay determined the defendant's Notice of Motion dated 19th August 2022 seeking leave to file a Notice of Appeal out of time against the judgment in the main adverse possession suit. The plaintiff opposed, arguing that the ELC lacked jurisdiction to grant such leave (which he said lay with the Court of Appeal), that there was unexplained delay of over three weeks, and that no draft memorandum of appeal was attached to demonstrate arguability. The court framed two issues: its jurisdiction to extend time, and whether leave should be granted. On jurisdiction, it adopted Munyao J's reasoning in Loise Chemutai Ngurule, holding that Section 7 of the Appellate Jurisdiction Act confers power on the High Court - which includes the ELC - to extend time for filing a Notice of Appeal, and that Rule 4 of the Court of Appeal Rules is not exclusive. Applying the Leo Sila Mutiso criteria, the court found the three-week delay not inordinate, accepted the explanation that the applicant's advocate failed to lodge the appeal, and held the intended challenge to the adverse possession judgment over parcels Kanyada/K/Kalanya 4708 & 4340 arguable even without a draft memorandum. Balancing the respondent's right to the fruits of judgment against the applicant's constitutional right of appeal, the court allowed the application, directed the applicant to file and serve the Notice of Appeal within 14 days, and ordered the applicant to bear the costs of the application.

Key legal issues

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01

Jurisdiction of the ELC to extend time for filing a Notice of Appeal

Holding

The court has jurisdiction under Section 7 of the Appellate Jurisdiction Act and Order 50 rule 6 of the Civil Procedure Rules; the Court of Appeal's power under Rule 4 is not exclusive.

Reasoning

The court adopted Munyao J's reasoning in Loise Chemutai Ngurule that Section 7 confers jurisdiction on the High Court, which under the 2010 Constitution includes the Environment and Land Court, to extend time for giving notice of intention to appeal. Rule 4 of the Court of Appeal Rules also gives the Court of Appeal power but does not make it exclusive, so there is no conflict between the provisions.

p. 3
02

Whether leave to file a Notice of Appeal out of time should be granted

Holding

Leave granted: the 3-week delay was not inordinate, the intended appeal on adverse possession was arguable, and the respondent could be compensated by costs.

Reasoning

Applying the Leo Sila Mutiso factors, the court found the delay of 3 weeks not inordinate, the reason (advocate's failure) acceptable, and the intended challenge to the adverse possession judgment arguable even without a draft memorandum. The court balanced the respondent's right to the fruits of judgment against the applicant's constitutional right of appeal, compensating the respondent with costs.

p. 4

Legal principles established

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  • The High Court (including the ELC) has power under Section 7 of the Appellate Jurisdiction Act to extend time for filing a Notice of Appeal from its own judgment; the power is not exclusive to the Court of Appeal.
  • In the absence of a draft memorandum of appeal, the court may gauge the arguability of an intended appeal from other supportive evidence.
  • The factors for extending time are 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.Leave granted to the applicant to file notice of appeal against the judgment and decree delivered on 27th July 2022
  2. 2.The applicant to file and serve his Notice of Appeal within 14 days from the date of the ruling
  3. 3.Costs of the application to be borne by the applicant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159 (and Article 159(2)(d))
  • Constitution of Kenya, 2010Articles 48 and 50
  • Appellate Jurisdiction ActSection 7
  • Civil Procedure ActSections 3 and 3A
  • Civil Procedure Rules, 2010Order 51 rules 1 and 2
  • Civil Procedure Rules, 2010Order 50 rule 6
  • Civil Procedure Rules, 2010Order 51 rule 16
  • Court of Appeal RulesRule 4
  • Environment and Land Court Practice Directions, 2014Practice Direction number 33

Cases cited (9)

  • Board of Governors, Moi High School, Kabarak and another v Malcolm Bell
    (2013) eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    (2014) eKLR
  • Edward Njane Nganga & Another v Damaris Wanjiku Kamau & Another
    (2016) eKLR

    Adopting Munyao J's holding that the High Court/ELC has jurisdiction to extend time for filing a Notice of Appeal.

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

    Section 7 of the Appellate Jurisdiction Act confers jurisdiction on the High Court, including ELC, to extend time; Rule 4 of Court of Appeal Rules is not exclusive.

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

    Held Rule 4 of the Court of Appeal Rules gave the Court of Appeal exclusive jurisdiction to extend time - a position disagreed with.

  • Leo Sila Mutiso V. Rose Hellen Wangari Mwangi
    (1999) 2 EA 231

    Parameters for extending time: length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent.

  • Richard Nchapi Leiyagu v IEBC & 2 Others
    [2013] eKLR

    The right to a hearing is constitutionally entrenched and the cornerstone of the rule of law.

  • Mbaki & Others v Macharia & Another
    [2005] 2 EA 206

    The right to be heard is a valued right.

  • Abbas Sherally & Another v Abdul Fazaiboy
    Civil Application No. 33 of 2003

    A decision reached in violation of the right to be heard will be nullified as a breach of natural justice.

Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act (Cap 9) and Order 50 rule 6 of the Civil Procedure Rules, 2010

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, "Abayo v Rege", Case Analysis (2023). Environmental and Land Originating Summons 36 of 2021 (Formerly Migori ELC No. 103 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18056/eng@2023-06-19

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