Nampaso (Suing as a Personal Representative of the Estate of Charles Kapolonto, Deceased) v Gilisho & 8 others (Environment and Land Miscellaneous Application E21 of 2023) [2024] KEELC 1473 (KLR)
The bottom line
#The Environment and Land Court in Narok refused to forgive a lawyer's delay in filing an appeal over family land, so the appeal and property protection orders were lost.
What this practically means
#Executive summary
#Key legal issues
#Whether time should be enlarged under Section 79G of the Civil Procedure Act and Order 50 Rule 6 to file an appeal out of time
The application was dismissed; the delay of over one and a half years was not excused as it arose from the advocate's own negligence and misconception
The court applied the four-factor test in Thuita Mwangi v Kenya Airways (restating Mutiso v Mwangi): length of delay, reason for delay, arguability of the appeal and prejudice. The applicant's counsel admitted the error was his own - he confused the date of delivery of the ruling with the date it was issued and failed to follow up on the court record. Such a delay, being within the party's control, was not excusable, and no good and sufficient cause was demonstrated.
Whether interim preservation orders should issue pending an intended appeal
No preservation orders were granted as the substantive application for extension of time failed
The injunction was sought only to aid preservation pending the intended appeal. Since the court found no merit in the application for enlargement of time, the ancillary prayer for injunctive relief could not survive. The respondents had also argued no prima facie case existed, contending the suit parcels did not form part of the estate of the deceased Charles Kapolonto Nampaso and that the applicant could not claim infringement of a legal right over the estate.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary, and the court considers the length of delay, the reason for the delay, the chances of the appeal succeeding and the degree of prejudice to the respondent
- An appeal may be admitted out of time only if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time (Section 79G, Civil Procedure Act)
Court orders
#- 1.The Notice of Motion Application dated 16th November 2023 is dismissed
- 2.No orders as to costs
- On appeal from
- Chief Magistrate's Court, Narok
- Narok CMELC/E072/2021
- Jurisdiction invoked
- Order 50 Rule 6 and Order 42 Rule 6(6) of the Civil Procedure Rules; Sections 1A, 1B, 3A, 63, 75(1)(h), 78(2) and 79G of the Civil Procedure Act; Section 16A(2) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nampaso (Suing as a Personal Representative of the Estate of Charles Kapolonto, Deceased) v Gilisho & 8 others (Environment and Land Miscellaneous Application E21 of 2023) [2024] KEELC 1473 (KLR)", Case Analysis (2024). Narok E007 of 2022 (Notice of Motion dated 16th November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1473/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.