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ELCPartially AllowedNotice of Motion dated 5th February 2024 in Meru ELC (appeal from Meru C.M ELC No. E035 of 2022)· [2024] KEELC 5092 (KLR)

Verity Wawuda v Paul Murungah Mugah & 8 Others

Environment and Land Court
4 July 2024
CYC.K Yano
1,705 words in judgment
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The bottom line

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The Meru Environment and Land Court allowed a change of lawyers after judgment but refused to let a landowner appeal late, finding a six-month delay inexcusable.

What this practically means

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Executive summary

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The applicant moved the Environment and Land Court at Meru by Notice of Motion dated 5th February 2024, seeking two prayers: leave for the firm of Maitai Rimita & Co. Advocates to come on record after judgment in place of Basilio Gitonga, Murithi & Co. Advocates, and leave to file an appeal out of time against the judgment of Hon. J.M Njoroge C.M delivered on 26th June 2023 in Meru CM ELC No. E035 of 2022. The application was brought under Sections 1A, 1B, 3A and 79G of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. The applicant attributed the delay to the court's heavy workload, alleging she was only issued with the judgment on 4th January 2024, and cited old-age illness. The 3rd respondent supported the application, but the other respondents, through a replying affidavit of the 1st respondent, Paul Murungah Mugah, opposed it as an afterthought riddled with falsehoods, noting the applicant produced no proof of requests for the judgment and that the annexures were misleading. C.K Yano J framed two issues. On the first, leave for the incoming firm was granted since the application was served on all parties, including the outgoing firm, and was unopposed. On the second, the court applied the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi and Thuita Mwangi v Kenya Airways: length of delay, reason for delay, chances of success and prejudice. Finding a delay of over six months to be inordinate and unexplained, the court noted the absence of evidence of court-induced delay, the applicant's unexplained further delay of over a month after certification, and that the draft memorandum of appeal related to an entirely different case (Tigania PMCC No. 14 of 2018), making it impossible to assess the appeal's chances. The extension prayer was dismissed; each party was ordered to bear its own costs given partial success.

Key legal issues

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01

Whether leave should issue for incoming advocates to come on record after judgment

Holding

Granted, as the application was served on all parties including the outgoing firm and was unopposed

Reasoning

Order 9 Rule 9 of the Civil Procedure Rules requires a court order for change of advocates after judgment, either by application with notice or by consent. The application was served on all parties including Basilio Gitonga, Murithi & Co. Advocates, and none opposed. Leave was therefore properly granted.

p. 3
02

Whether leave to appeal out of time should be granted under Section 79G

Holding

Refused; the applicant failed to demonstrate good and sufficient cause for the inordinate delay

Reasoning

Appeals from the lower court must be filed within 30 days. The application was filed over six months after the period lapsed. No evidence supported the claim of court-induced delay; no proof of a request for proceedings; and the applicant did not explain the month-long delay after obtaining the certified judgment. The draft memorandum related to an unrelated case, so chances of success could not be assessed.

p. 4

Legal principles established

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  • Extension of time to appeal is a matter of judicial discretion and the applicant must show good and sufficient cause
  • 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
  • A change of advocate after judgment requires an order of the court under Order 9 Rule 9

Court orders

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  1. 1.Leave is granted to the firm of Maitai Rimita & Co advocates to come on record for the applicant in place of M/S Basilio Gitonga, Murithi & Associates Advocates
  2. 2.The prayer for leave to appeal out of time against the judgment in Meru CM ELC No. E035 of 2022 delivered on 26th June 2023 is dismissed
  3. 3.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 79G
  • Civil Procedure RulesOrder 51 Rule 1; Order 9 Rule 9
  • Environment and Land Court Actenabling provisions

Cases cited (2)

  • Leo Sila Mutiso V Rose Hellen Wangari Mwangi
    Civil Application No. NAI 255 of 1997
  • Thuita Mwangi Vs Kenya Airways Limited
    [2003] eKLR
On appeal from
Chief Magistrate's Court (Meru)
Meru C.M ELC No. E035 of 2022
Jurisdiction invoked
Sections 1A, 1B, 3A and 79G of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules and enabling provisions 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, "Verity Wawuda v Paul Murungah Mugah & 8 Others", Case Analysis (2024). Notice of Motion dated 5th February 2024 in Meru ELC (appeal from Meru C.M ELC No. E035 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5092/eng@2024-07-04

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