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ELCPartially AllowedEnvironment and Land Miscellaneous Application E046 of 2022· [2023] KEELC 18391 (KLR)

Muinde & 6 others v Matei & another

Environment and Land Court
29 June 2023
1,995 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court gave seven family members a second chance to file their land appeal out of time, but refused to stop the land's subdivision meanwhile.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (CA Ochieng, J) determined a notice of motion dated October 13, 2022 in which seven applicants sought extension of time and leave to lodge a memorandum of appeal against the ruling of Honourable Bartoo, Senior Resident Magistrate, delivered on August 4, 2022 in Machakos CM ELC E017 of 2022, together with a stay of execution of that ruling. The applicants explained that an earlier appeal (E032 of 2022) had been withdrawn without costs because they failed to annex a draft memorandum of appeal, and attributed the delay to inadvertent human error. The 1st respondent opposed, contending the application was an abuse of process, that no arguable grounds existed, that the applicants had not demonstrated substantial loss, and that he had already begun subdividing the suit land Machakos/Kitanga/269 after the lower court lifted the applicants' caution. The court applied section 79G and section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, and adopted the extension-of-time factors from Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi and Mwangi v Kenya Airways Ltd, holding that only arguability, not a high probability of success, need be shown. Finding the draft memorandum raised triable issues concerning the lifted caution and bona fide purchasers' interests, and that the respondent would suffer no prejudice, the court enlarged time and directed the applicants to file and serve the memorandum of appeal within fourteen days, failing which the orders would stand vacated. The stay of execution prayer was refused because no appeal had yet been lodged. Costs were in the cause.

Key legal issues

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01

Whether time should be enlarged to file the memorandum of appeal out of time

Holding

Time was enlarged; the applicants' explanations for the delay were plausible, the draft memorandum raised triable issues, and the respondent would suffer no prejudice

Reasoning

Applying section 79G and section 95 of the Civil Procedure Act and Order 50 Rule 6, and the factors in Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi (delay, reason, arguability, prejudice), the court found the delay caused by human error excusable. The previous application failed only because the draft memorandum was not annexed. The draft memorandum raised triable issues concerning a lifted caution on family land, and the respondent, already subdividing, would suffer no prejudice.

p. 4
02

Whether stay of execution should issue

Holding

Refused because no appeal had been lodged and the stay sought was only pending this application

Reasoning

The court noted the applicants had earlier withdrawn Appeal No E032 of 2022 and had not yet lodged the intended appeal. Since the stay sought was tied only to the outcome of the extension application, there was no pending appeal to preserve, and the court declined to issue stay of execution orders.

p. 4

Legal principles established

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  • An applicant for extension of time need only show arguability of the intended appeal, not a high probability of success
  • Extension of time is discretionary and may be granted even after expiry of the period, on terms the justice of the case requires

Court orders

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  1. 1.The applicants be and are hereby directed to file and serve the memorandum of appeal within fourteen (14) days from the date hereof failure of which the orders granted herein stand vacated
  2. 2.Costs of this application will be in the cause

Authorities

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Legislation

  • Civil Procedure Actsection 79G
  • Civil Procedure Actsection 95
  • Civil Procedure RulesOrder 50 rule 6
  • Constitution of KenyaArticle 159(1)
  • Constitution of KenyaArticle 10

Cases cited (8)

  • Stecol Corporation Limited v Susan Awuor Mudemb
    (2021) eKLR

    Extension of time principles

  • Vishva Stone Suppliers Limited v RSR Stone (2006) Limited
    (2020) eKLR

    Extension of time principles

  • James Wangalwa & another vs Agnes Naliaka Cheseto
    (2012) eKLR

    Substantial loss requirement for stay

  • Charles Karanja Kiiru v Charles Githinji Muigwa
    (2017) eKLR

    Opposition to extension of time

  • Teresisa Kwamboka Mauti (suing as the Administratix of the estate of David Mauti Nyarango (deceased) & Another v Ezekiel Nyarango Mauti & 5 others
    (2022) eKLR

    Opposition to extension of time

  • Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & another
    [2018] eKLR

    Factors for exercising discretion to extend time; arguability standard

  • Mwangi v Kenya Airways Ltd
    [2003] KLR

    Factors for extension of time: delay, reason, arguability, prejudice, compliance, public interest

  • Kamlesh Mansukhalal Damki Patni Vs Director of Public Prosecution & 3 Others
    [2015] eKLR

    Courts exist to dispense justice; judicial authority derived from the people under Article 159(1)

Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules (enlargement of time to appeal from a subordinate court)

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, "Muinde & 6 others v Matei & another", Case Analysis (2023). Environment and Land Miscellaneous Application E046 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18391/eng@2023-06-29

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