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ELCPartially AllowedNot stated in the judgment extract (Naivasha ELC Appeal arising from Naivasha ELC No. 24 of 2020)· [2024] KEELC 5222 (KLR)

Munyinyi v Ngendo; Njuguna & another (Interested Parties) (Environment and Land Miscellaneous Application E001 of 2024) (Environment and Land) [2024] KEELC 5222 (KLR)

Environment and Land Court
11 July 2024
3,770 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 was a ruling of the Environment and Land Court at Naivasha (M. C. Oundo, J) on a Notice of Motion dated 23rd January 2024 by the Appellant, Boniface Munyiri Mukuriah, seeking leave to appeal out of time against a judgment of the Chief Magistrate's Court at Naivasha (ELC No. 24 of 2020) delivered on 24th August 2023, in which the Respondent, Grace Ng'endo, obtained a permanent injunction against trespass onto L.R No. 10243-809 Kiriko Farm and general damages of Kshs. 100,000/=. The Applicant blamed his former advocate, who filed an unsuccessful review instead of an appeal, and argued the trial court lacked pecuniary jurisdiction. The Respondent opposed, asserting inordinate and inexcusable delay, absence of substantial loss, want of security, and that the Applicant had no proprietary interest in the suit property. Applying the Salat principles on extension of time, the court found the Applicant had not come to court with clean hands, his indolence lying squarely on his door, but nonetheless exercised its discretion to enlarge time, there being no evidence of prejudice to the Respondent. On the injunction limb, applying Giella v Cassman Brown as adapted for injunctions pending appeal, the court found no prima facie case: the Applicant had annexed no registrable document of ownership or valuation report and had not demonstrated substantial loss. The injunction application was dismissed. The Applicant was given 30 days to compile, file and serve a complete record of appeal, failing which the window would lapse. There were no orders as to costs.

Key legal issues

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01

Whether the Applicant established good and sufficient cause for filing the appeal out of time under Section 79G of the Civil Procedure Act

Holding

Although the Applicant had not come to court with clean hands and his indolence lay squarely on his door, the court exercised its discretion to enlarge time, there being no evidence of prejudice to the Respondent

Reasoning

The court adopted the Salat principles on extension of time. It found the delay of about five months explained by the former advocate's failure to lodge an appeal, instead filing a review which was declined in December 2023. Noting that cases belong to litigants and not advocates, the court nonetheless exercised its discretion because the Respondent showed no prejudice and the Applicant's right of appeal deserved protection.

p. 6
02

Whether a temporary injunction pending appeal should issue under Order 42 Rule 6(6)

Holding

Dismissed; the Applicant failed at the first Giella step of establishing a prima facie case with a probability of success

Reasoning

The court applied the Patricia Njeri principles and Giella v Cassman Brown, noting the sequential nature of the enquiry per Kenya Commercial Finance Co. Ltd v Afraha Education Society. The Applicant relied solely on allegations that the trial court lacked pecuniary jurisdiction and on a third party's investment in the land. Without a registrable document of ownership or a valuation report, and without demonstrating substantial loss, no prima facie case or irreparable harm was established.

p. 8

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the discretion of the court, and a litigant cannot blame his advocate for his own indolence
  • The enquiry into whether to grant an interlocutory injunction is sequential: the second condition is addressed only if the first (prima facie case) is satisfied

Court orders

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  1. 1.Leave granted / enlargement of time for the Applicant to file his Appeal after the expiry of the statutory period
  2. 2.Applicant to compile, file and serve a complete record of appeal upon the Respondents within 30 days from the date of the ruling, failing which the window to file the Appeal shall automatically lapse
  3. 3.Application seeking injunctive orders restraining the respondents from dealing with L.R No. 10243-809 Kiriko Farm dismissed
  4. 4.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rules 1(A), 2(1), (2), 4(1), (2), (3) and 8
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 42 Rule 6(1), 6(2) and 6(6)
  • Civil Procedure ActSection 79G
  • Environment and Land Court ActSection 13

Cases cited (17)

  • Mugo & Others v. Wanjiru and Another
    (1970) EA. 481
  • Cristopher Murithi Ngugu v Eliud Ngugu Evans
    [2016] eKLR
  • Charles N. Ngugi v ASL Credit Limited
    [2022] eKLR
  • Owners of the Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Vishram Ravji Halai vs. Thornton & Turpin
    Civil Application No. Nai. 15 of 1990 [1990] KLR 365
  • Nandi Tea Estates Ltd v George Ochieng Oduogo
    [2015] eKLR
  • David Morton Silverstein v Atsango Chesoni
    [2002] eKLR
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
  • Absalom Dowa v Tarbo Transporters
    [2013] eKLR
  • Nicholas Kiptoo Arap Korir Salat vs. The Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
  • Gerald M'limbine v Joseph Kangangi
    [2009] eKLR
  • Mwangi v Kenya Airways Ltd
    [2003] KLR
  • Patricia Njeri & 3 Others vs. National Museum of Kenya
    [2004] eKLR
  • Giella vs. Cassman Brown & Company Ltd
    [1973] EA 358
  • Mrao vs First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Kenya Commercial Finance Co. Ltd –vs- Afraha Education Society
    (2001) IEA 86
  • Joseph Wambua Mulusya –vs- David Kitu & Another
    (2014) eKLR
On appeal from
Chief Magistrate's Court at Naivasha
ELC No. 24 of 2020
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Section 13 of the Environment and Land Court Act; Order 42 Rule 6 and Order 40 of the Civil Procedure Rules, 2010

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, "Munyinyi v Ngendo; Njuguna & another (Interested Parties) (Environment and Land Miscellaneous Application E001 of 2024)  (Environment and Land) [2024] KEELC 5222 (KLR)", Case Analysis (2024). Not stated in the judgment extract (Naivasha ELC Appeal arising from Naivasha ELC No. 24 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5222/eng@2024-07-11

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