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ELCDismissedNarok E007 of 2022 (Notice of Motion dated 16th November 2023)· [2024] KEELC 1473 (KLR)

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)

Environment and Land Court
20 March 2024
2,223 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a ruling by the Environment and Land Court at Narok (Hon. C.G. Mbogo, J) on a Notice of Motion dated 16th November 2023 in which the applicant, Anthony Ole Nampaso, sought enlargement of time to file an appeal out of time against the ruling of Hon. Samuel Mungai (CM) in Narok CMELC/E072/2021, together with orders restraining the respondents from wasting, alienating, selling, subdividing or otherwise disposing of parcels of land registered as Cis Mara/Lemek/4260, 4261, 4262, 6933 to 6936 and 7079 to 7222. The applicant's advocate, Ernest Githuka Ndung'u, deposed that he was virtually present on 31st May 2022 when the trial court began delivering its ruling but the network collapsed; he later learnt the ruling had been delivered on 9th June 2022. He acknowledged his mistake in confounding the dates and sought an opportunity to address preservation of the suit properties. The 1st, 2nd, 3rd and 5th respondents opposed, arguing the application was time barred, that the advocate was indolent, and that the suit parcels did not form part of the estate of Charles Kapolonto Nampaso (deceased). The applicant relied on Section 16A(2) of the Environment and Land Court Act, and the respondents relied on Salat, Giella v Cassman Brown and related authorities. Applying Section 79G of the Civil Procedure Act and the discretionary factors in Thuita Mwangi v Kenya Airways (restating Mutiso v Mwangi), the court found the applicant's counsel indolent and the reasons for the delay unpersuasive. The application was dismissed with no orders as to costs.

Key legal issues

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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

Holding

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

Reasoning

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.

p. 5
02

Whether interim preservation orders should issue pending an intended appeal

Holding

No preservation orders were granted as the substantive application for extension of time failed

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Notice of Motion Application dated 16th November 2023 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1; Order 50 Rule 6; Order 42 Rule 6(6)
  • Civil Procedure ActSections 1A, 1B, 3A, 63, 75(1)(h), 78(2), 79(b)/79G
  • Environment and Land Court ActSection 16A(2)
  • Constitution of KenyaArticle 50(1)

Cases cited (9)

  • Nicholas Kitoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 Others
    [2014] eKLR
  • National Union of Mineworkers v Council of Mineral Technologies
    [1998] eKLR
  • Giella v Cassman Brown
    (1973) EA 358
  • Mrao Limited v First American Bank of Kenya Limited
    [2003] eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
  • Paul Gitonga Wanjau v Gathuthis Tea Factory Company Limited & 2 Others
    [2016] eKLR
  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR
  • Thuita Mwangi v Kenya Airways
    [2003] eKLR
  • Mutiso v Mwangi
    [1997] KLR 630
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

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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, "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.