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ELCDismissedNot stated in the judgment· [2024] KEELC 3397 (KLR)

Okumu v Okoth (Environment and Land Appeal E037 of 2022) [2024] KEELC 3397 (KLR)

Environment and Land Court
25 April 2024
AKA. Y. Koross
2,539 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Siaya (Koross J) determined a notice of motion dated 28/08/2023 in which the appellant sought setting aside, vacating, review or variation of ex parte orders issued on 9/11/2022 striking out his memorandum of appeal for non-observance of statutory timelines, together with reinstatement of the appeal. The appellant contended the striking out resulted from an administrative error, namely late issuance of the court's official receipt, amounting to an error apparent on the face of the record under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. The respondent opposed, arguing the memorandum of appeal was filed outside the 30-day period under Section 16A of the Environment and Land Court Act and Section 79G of the Civil Procedure Act without leave, rendering it incompetent ab initio. The court expunged a supplementary affidavit filed without leave under Order 19 Rule 1. Applying the review principles in Republic v Advocates Disciplinary Tribunal Exparte Apollo Mboya, the court found no nexus between the late receipt and the striking-out order, since the memorandum was date-stamped on presentation on 1/11/2022, well beyond the 30-day deadline of 28/10/2022. Relying on Salat, the court held the out-of-time appeal was a nullity and it lacked jurisdiction to revive it. The motion was dismissed with costs to the respondent on 25 April 2024.

Key legal issues

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01

Whether the dismissal/striking out of the appeal on 9/11/2022 should be set aside on the ground of an error apparent on the face of the record

Holding

The motion is not merited; no error apparent on the face of the record was established

Reasoning

The appellant relied on the late issuance of the official court receipt (8/11/2022) as an administrative error. The court found the memorandum of appeal was date-stamped on presentation (1/11/2022), and the court only considered that date in striking out the appeal. The late receipt had no relationship with the order, so the error was not self-evident or prima facie, applying the review principles in Republic v Advocates Disciplinary Tribunal.

p. 5
02

Whether the appeal was properly struck out as filed out of time

Holding

Yes; the appeal was filed on 1/11/2022, beyond the 30-day period expiring 28/10/2022, without leave, and was therefore a nullity

Reasoning

Section 16A of the Environment and Land Court Act mirrors Section 79G of the Civil Procedure Act in setting a 30-day timeline. The 30th day fell on Friday 28/10/2022, when offices were open under Order 50 Rule 3, yet the memorandum was filed on Tuesday 1/11/2022 without leave. Following Salat, a document filed out of time without leave is a nullity and the court lacked jurisdiction to admit it.

p. 5

Legal principles established

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  • The grounds for review under Order 45 Rule 1 (discovery of new and important matter, mistake, sufficient cause) must be proved by the applicant
  • An error apparent on the face of the record must be self-evident and prima facie visible without detailed examination
  • A memorandum of appeal filed outside the statutory 30-day period without leave is a nullity and the court is bereft of jurisdiction to entertain it

Court orders

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  1. 1.The notice of motion dated 28/08/2023 is dismissed with costs to the respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 95
  • Environment and Land Court ActSection 16A
  • Civil Procedure RulesOrder 19 Rule 1
  • Civil Procedure RulesOrder 42 Rule 10
  • Civil Procedure RulesOrder 42 Rule 12
  • Civil Procedure RulesOrder 42 Rule 21
  • Civil Procedure RulesOrder 42 Rule 35
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 50 Rule 2
  • Civil Procedure RulesOrder 50 Rule 3

Cases cited (5)

  • Bernard Muthee & another v Anita Kamba Mwiti
    [2021] eKLR
  • Republic v Advocates Disciplinary Tribunal Exparte Apollo Mboya
    [2019] eKLR
  • John Njagi Karua v Njiru Gatumu
    [2021] eKLR
  • Pinpoint Solutions Limited and Another v Lucy Waithegeni Wanderi (as the Legal Administrator of the Estate of James Nyanga Muchangi)
    [2020]
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

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, "Okumu v Okoth (Environment and Land Appeal E037 of 2022) [2024] KEELC 3397 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3397/eng@2024-04-25

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