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ELCAllowedEnvironment and Land Miscellaneous Application 56 of 2022· [2023] KEELC 18060 (KLR)

Ndoro v Omar (Environment and Land Miscellaneous Application 56 of 2022)

Environment and Land Court
15 June 2023
EMEK Makori
839 words in judgment
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The bottom line

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Kenya's Environment and Land Court gave a woman who never knew about a land case until eviction a second chance to appeal.

What this practically means

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Executive summary

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The applicant, Jacline Mhenzo Ndoro, sought leave to appeal out of time against the decision in Land Case No. E131/2021 before the Chief Magistrate's Court at Malindi, in which judgment was entered against her and execution by eviction followed. She averred that she was never served with the plaint and summons, was never accorded a hearing, and only learned of the suit at the execution stage; she relied on Athman Nasura Juma v Ajwa Mohammed Romadhan and Muchungi Kiragu v James Kiragu and Another on extension of time where an appeal is arguable. The respondent opposed, contending that service in the lower court was satisfactory, that the appeal was dead on arrival, and that the proper remedy was an application to set aside or review the ex parte judgment under Order 10 rule 11 of the Civil Procedure Rules, not an appeal. The court framed a single issue: whether to grant extension of time. Adopting the Muchungi Kiragu principles and invoking Article 50(1) of the Constitution on the right to be heard, Makori J held that there was a judgment against the intended appellant who needed a second chance; the reasons for the delay were genuine as she was an unrepresented litigant who learned of the matter at execution. The court allowed the extension, directing service of appeal bundles within 21 days, a reply within 14 days of service, and costs in the intended appeal.

Key legal issues

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01

Whether to grant extension of time to appeal out of time

Holding

Extension granted; the delay was genuine and the applicant, an unrepresented litigant unaware of the suit until execution, deserves a second chance.

Reasoning

The court exercised its discretion guided by the Muchungi Kiragu principles: the discretion is unfettered, and extension is granted where the intended appeal is arguable and the delay excusable without prejudice to the opponent. The applicant claimed she was never served with summons or plaint and learned of the suit only upon eviction. Invoking Article 50(1) on the right to be heard, the court held the reasons genuine, noting that if proper service is proved in the appeal, the appeal will fail.

p. 2

Legal principles established

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  • Extension of time is discretionary and turns on good reasons for delay and an arguable appeal; an unrepresented litigant who learns of a suit at execution may be granted a second chance.

Court orders

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  1. 1.Leave granted to the applicant to appeal out of time against the decision in Land Case No. E131/2021, Chief Magistrate Malindi
  2. 2.The applicant to serve the appeal bundles within 21 days
  3. 3.The respondent to reply within 14 days after service
  4. 4.Costs in the intended appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Civil Procedure RulesOrder 10 rule 11

Cases cited (2)

  • Athman Nasura Juma v Ajwa Mohammed Romadhan
    Court of Appeal No 227 of 2015 (unreported)

    Where there is an arguable appeal, courts usually grant extension of time to appeal out of time.

  • Muchungi Kiragu v James Kiragu and Another
    [1998] eKLR

    Principles for granting extension of time: unfettered discretion, arguable appeal, inexcusable delay and prejudice.

On appeal from
Chief Magistrate's Court at Malindi
Land Case No. E131/2021
Jurisdiction invoked
Discretion to extend time to appeal; Article 50(1) of the Constitution invoked on the right to be heard

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, "Ndoro v Omar (Environment and Land Miscellaneous Application 56 of 2022)", Case Analysis (2023). Environment and Land Miscellaneous Application 56 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18060/eng@2023-06-15

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