Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedMiscellaneous Application 64 of 2022· [2023] KEELC 19899 (KLR)

Kangethe v Kienye & 2 others

Environment and Land Court
18 September 2023
JKJ G Kemei
2,039 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court let a late land appeal proceed, but only on strict terms: file within 15 days and pay Kshs 20,000 in costs.

What this practically means

#

Executive summary

#
The Applicant, Kagitu Kangethe, sought leave under Section 79G of the Civil Procedure Act, Order 51 rule 1 of the Civil Procedure Rules and Articles 48 and 159(2)(d) of the Constitution to file an appeal out of time against the judgment of Hon. Jacinta Orwa SRM in ELC No 4 of 2018 (Kikuyu) delivered on 30 August 2022, dismissing his suit. He attributed the delay to the late supply of typed proceedings, furnished 42 days after judgment. The 1st and 2nd Respondents opposed, arguing the delay of about 67 days post-judgment was inordinate and unexplained, that waiting for typed proceedings is unnecessary, that proceedings were requested only four days before the deadline, and that the Applicant took a further 25 days after receiving them to file the application; they also challenged the unsigned Certificate of Delay. The 3rd Respondent did not respond. Applying the Salat principles and related authorities, J G Kemei J found there was delay but held it was explained to the Court's satisfaction, noting that obtaining typed proceedings was unnecessary for filing an appeal and that counsel ought to have known better. Balancing the Applicant's right of appeal against the Respondents' right to enjoy the fruits of judgment, the Court allowed the application on terms: the appeal to be filed and served within 15 days, failing which the orders lapse automatically, with throw away costs of Kshs 20,000 to the 1st and 2nd Respondents.

Key legal issues

#
01

Whether the delay of about 37 days in filing the appeal was satisfactorily explained

Holding

The Court found the delay explained, though unnecessary, because the Applicant spent time obtaining typed proceedings which are not a prerequisite to filing an appeal

Reasoning

The Court noted the Applicant, though represented, waited for typed proceedings which are only needed for the Record of Appeal. Time spent obtaining typed proceedings is normally excluded when computing delay, and the certificate of delay exists for that purpose. Counsel as an officer of the court ought to have known better, but the Court nonetheless found the delay explained to its satisfaction.

p. 4
02

Whether the Respondents would suffer prejudice if extension is granted

Holding

No prejudice outweighed the Applicant's right to be heard on appeal; the Respondents' right to enjoy the fruits of judgment was protected by throw away costs and a 15-day default clause

Reasoning

The Court balanced the Applicant's right of appeal against the Respondents' legitimate expectation that litigation had ended. It protected the Respondents by imposing throw away costs of Kshs 20,000 and conditioning the extension on filing within 15 days, failing which the orders lapse automatically.

p. 3

Legal principles established

#
  • Extension of time is an equitable discretionary remedy available only to a deserving party who explains the delay to the satisfaction of the Court
  • A plausible and satisfactory explanation for delay is the key that unlocks the Court's discretionary favour

Court orders

#
  1. 1.The Applicant to file and serve the Appeal within the next 15 days in default the orders shall lapse automatically
  2. 2.Throw away costs in the sum of Kshs 20,000/- in favour of the 1st and 2nd Respondents, payable by the Applicant

Authorities

#

Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 1A
  • Civil Procedure RulesOrder 51 rule 1
  • Constitution of KenyaArticles 48 and 159(2)(d)

Cases cited (6)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others
    [2013] eKLR

    Threshold principles for extension of time

  • Aviation Cargo Support Limited v St Mark Freight Services Limited
    [2014] eKLR

    Extension of time is discretionary, exercised judicially; inordinate delay must be plausibly explained

  • City Chemist (Nbi) & Another v Oriental Bank Limited
    Civil Application No Nai 302 of 2008 (UR 199/2008)

    Overriding objective does not facilitate extension where delay is inordinate and unexplained

  • M/s Portreitz Maternity v James Karanga Kabia
    Civil Appeal No 63 of 1997

    Right of appeal must be balanced against the plaintiff's right to enjoy the fruits of judgment

  • Monica Malel & Anor v R Et Al
    Eldoret Civil Appl. No Nai 246 of 2008

    Reason for delay must be specific and not based on guess work

  • Haywood v Cope
    (1858) 25 BEAV 140

    Discretion must be exercised according to fixed and settled rules

On appeal from
Principal Magistrates' Court at Kikuyu
ELC No 4 of 2018
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Articles 48 and 159(2)(d) of the Constitution; Order 51 rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kangethe v Kienye & 2 others", Case Analysis (2023). Miscellaneous Application 64 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19899/eng@2023-09-18

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