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ELCStruck OutKitale ELC Appeal arising from Kitale Civil Case No. 158 of 1993· [2024] KEELC 5128 (KLR)

Note correct title not reproduced in record; appeal from Kitale Civil Case No. 158 of 1993 (Defendant v Frank A. Butachi & another)

Environment and Land Court
10 July 2024
FNFred Nyagaka
1,424 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land appeal filed almost three years late with no court permission, and the winner can now enforce the original judgment immediately.

What this practically means

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Executive summary

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The respondents had sued the appellant in Kitale Principal Magistrates' Court Civil Case No. 158 of 1993 seeking a declaration that a 1983 sale agreement over land parcel Trans Nzoia/Kosprin/111 was null and void, eviction, and mesne profits. The deceased first plaintiff had been allotted the land by the Settlement Fund Trustees and agreed in 1983 to sell it to the defendant, who allegedly paid only part of the consideration; no Land Control Board consent was obtained. The second plaintiff later purchased the land and obtained registration pursuant to a decree in Kitale PMCC No. 501 of 1992. By judgment of 28 May 2019, Hon. C. M. Kesse SRM allowed the plaintiffs' claim, declared the 1983 agreement null and void, and ordered eviction. The defendant appealed to the Environment and Land Court at Kitale on four grounds, contending that his occupation since 1984 and overriding interests were disregarded. Before the merits, the court examined whether the appeal was properly filed. Judgment had been delivered on 28 May 2019 but the appeal was lodged on 7 April 2022, two years, eleven months and nine days later, well outside the thirty days allowed by Section 79G of the Civil Procedure Act. The memorandum of appeal did not disclose certified delay, and the record contained no leave or extension of time. Relying on Salat v IEBC, the court held such a filing a nullity. The appeal was struck out with costs to the respondent, with execution of the lower court decree permitted to proceed without awaiting taxation of the appeal costs.

Key legal issues

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01

Whether an appeal filed nearly three years after judgment without leave or extension of time is competent

Holding

The appeal was incompetent and was struck out as a nullity

Reasoning

Section 79G of the Civil Procedure Act requires appeals from subordinate courts to be filed within thirty days, with a proviso for admission out of time on good and sufficient cause. The memorandum of appeal did not indicate any certified delay, and the record contained no order granting leave or extension. Citing Salat v IEBC, the court held that filing out of time without leave renders the document a nullity which the court cannot legalize.

p. 3

Legal principles established

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  • An appeal filed out of time without leave of the court is a nullity and cannot be remedied by a subsequent application for extension of time

Court orders

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  1. 1.The appeal is struck out as incompetent and a nullity
  2. 2.Costs of the appeal to the Respondent
  3. 3.Execution of the lower court decree may proceed without awaiting taxation of the costs of the appeal

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Limitation of Actions ActSection 35

Cases cited (1)

  • Nicholas Kiptoo Korir Arap Salat v Independent Electoral & Boundaries Commission & 7 Others
    [2014] eKLR
On appeal from
Principal Magistrates Court, Kitale
Civil Case No. 158 of 1993
Jurisdiction invoked
First appeal to the High Court (ELC) from a subordinate court under Section 79G of the Civil Procedure 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, "Note correct title not reproduced in record; appeal from Kitale Civil Case No. 158 of 1993 (Defendant v Frank A. Butachi & another)", Case Analysis (2024). Kitale ELC Appeal arising from Kitale Civil Case No. 158 of 1993. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5128/eng@2024-07-10

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