Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment as provided· [2024] KEELC 219 (KLR)

Grace Karuru M'Nchene v Agnes Nkatha Muriuki & another

Environment and Land Court
24 January 2024
1,179 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court refused to extend time to appeal after a nearly four-year unexplained delay, confirming that extension of time is earned, not automatic.

What this practically means

#

Executive summary

#
The applicant, Grace Karuru M'Nchene, moved the Environment and Land Court at Meru by notice of motion seeking leave to file an appeal out of time against a judgment delivered on 11.12.2019 (actually scheduled for that date but the court was not sitting; the applicant learned of the judgment on 2.2.2020). She explained that she requested proceedings promptly, paid a deposit on 3.2.2020, and applied for a certificate of delay on 5.11.2020 which was never signed despite follow-ups. The respondents, through Agnes Nkatha Muriuki, opposed, contending the appeal ought to have been filed by 28.2.2020 and that leave was sought three years and ten months later with no explanation, that extension is not a right, and that no security or chances of success were demonstrated. The applicant relied on the Salat, MFI Document Solution and County Executive of Kisumu authorities. The court, CK Nzili J, restated the legal framework under Section 79G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act, and the Supreme Court's guidelines in Salat. It held the burden lay on the applicant to explain the delay, which she failed to do for the periods 2021, 2022 and early 2023; that court operations continued during Covid-19; that a certificate of delay is not a prerequisite for such an application; and that the delay of three years and ten months was inordinate and inexcusable. The intended appeal's arguability and prejudice were also found against the applicant. The notice of motion was dismissed with costs.

Key legal issues

#
01

Whether there was sufficient cause for the delay in filing the appeal

Holding

The delay of three years and ten months was inordinate and inexcusable; the applicant failed to demonstrate vigilance between 2020 and 2023

Reasoning

The applicant attributed the delay to the court and registry but produced no follow-up letters after the payment of deposit in February 2020 and the email of November 2020. Court operations were only scaled down, not closed, during Covid-19. No explanation was offered for 2021, 2022 and the first half of 2023, and the certificate of delay was not a prerequisite.

p. 3
02

Whether the intended appeal was arguable and whether the respondents would suffer prejudice

Holding

The applicant's prejudice was not shown to exceed the respondents' prejudice, and the chances of success were not demonstrated

Reasoning

Applying Edith Gichugu Koine and Paul Musili Wambua, the court considered prejudice to the respondent, the overriding objective, and the chances of the appeal succeeding. The applicant was careless; the delay was too long regarding valuable land, and the respondents' prejudice was not demonstrated as outweighed.

p. 3

Legal principles established

#
  • Leave to appeal out of time is discretionary and not a right; the applicant must show reasonable cause, absence of prejudice, and public interest considerations
  • A certificate of delay is not a prerequisite for an application for leave to appeal out of time

Court orders

#
  1. 1.The notice of motion seeking leave to appeal out of time is dismissed
  2. 2.Costs of the application to the respondents

Authorities

#

Legislation

  • Civil Procedure ActSection 79G
  • Environment and Land Court ActSection 16A(1) & (2)
  • Constitution of KenyaArticles 48 and 50(1)

Cases cited (10)

  • MFI Document Solution Ltd vs Paretto Printing Works Ltd
    (2021) eKLR
  • County Executive of Kisumu vs County Government of Kisumu & others
    (2017) eKLR
  • Nicholas Arap Korir Salat vs Independent Electoral and Boundaries Commission & others
    (2014) eKLR
  • Kamlesh Patni vs Director of Public Prosecution & others
    (2015) eKLR
  • Wachira Nyaga vs Patrick Wamwirwa
    (2018) eKLR
  • Cecilia Wanja Waweru vs Jackson Wainaina Muiruri & another
    (2014) eKLR
  • Mwangi S. Kaimenyi vs Attorney General & another
    (2014) eKLR
  • Ivita vs Kyumbu
    (1984) KLR 441
  • Edith Gichugu Koine vs Stephen Njagi Thoithi
    (2014) eKLR
  • Paul Musili Wambua vs AG & others
    (2015) eKLR
Jurisdiction invoked
Section 79G of the Civil Procedure Act and Section 16A(1) & (2) of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Grace Karuru M'Nchene v Agnes Nkatha Muriuki & another", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/219/eng@2024-01-24

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