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ELCDismissedNot stated in judgment (Notice of Motion dated 2nd October 2023)· [2024] KEELC 6008 (KLR)

Ndiritu & another v Kubai (On behalf of 32 others) (Environment and Land Appeal E014 of 2023) [2024] KEELC 6008 (KLR)

High Court of Kenya
20 September 2024
JOJ. O. Olola
1,518 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The High Court in Nyeri dismissed an attempt to file a late land appeal because the applicants offered no proof or credible reason for the delay.

What this practically means

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Executive summary

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By a Notice of Motion dated 2nd October 2023, Annah Gathoni Ndiritu and Jane Wanjiru Gitaka sought leave to file an appeal out of time against a Ruling delivered in Nyeri CMCC No. E128 of 2009 on 16th August 2023, together with a stay of execution of that Ruling pending the intended appeal, with costs in the cause. The dispute concerns LR No. Gakawa/Kahurura/Block 1/Ichuga 482, which the 33 Respondents maintain is a public road. The Applicants argued the Nyeri matter had been stood over generally pending the conclusion of Nanyuki ELC Case No. 14 of 2019, and that they were shocked when the Respondents obtained survey orders in August 2023. The Respondents opposed, contending the application was defective, that the Nyeri and Nanyuki suits raised different issues as determined in a Nanyuki Ruling of 28th September 2022, and that no order staying the Nyeri proceedings existed. The court, applying Section 79G of the Civil Procedure Act and the Salat principles on extension of time, found the Ruling was actually delivered on 9th August 2023, making the delay approximately 30 days. The Applicants, who admitted awareness of the Respondents' application of 23rd March 2023, offered no evidence of any order staying the Nyeri proceedings. The court was not persuaded that a satisfactory explanation for the delay had been tendered, declined the extension of time, and consequently declined to consider the stay prayer. The Motion was dismissed with costs to the Respondents.

Key legal issues

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01

Satisfactory explanation for delay under Section 79G Civil Procedure Act

Holding

Applicants failed to explain the approximately 30-day delay; their claim that the Nyeri suit was stood over was refuted and unsupported by evidence

Reasoning

The Ruling was delivered on 9th August 2023, so time lapsed on or about 9th September 2023 and the delay was roughly 30 days. The Applicants attributed the delay to a belief that the Nyeri matter had been stood over pending the Nanyuki ELC case, but the Respondents denied any such order and the Applicants produced none. They also did not deny knowledge of the Respondents' March 2023 application.

p. 4
02

Stay of execution pending appeal

Holding

Stay could not be considered because the extension of time was refused

Reasoning

The stay prayer was predicated on there being an appeal on file. Having declined to extend time, the intended appeal could not be admitted, and the court therefore had no basis to entertain the stay of execution of the Ruling delivered in Nyeri CMCC No. E128 of 2009.

p. 4

Legal principles established

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  • An applicant seeking extension of time must satisfactorily explain the delay, and where an alleged stay order is refuted, the applicant must provide evidence of it

Court orders

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  1. 1.Dismissal of the Motion dated 2nd October 2023
  2. 2.Costs of the application to the Respondents
On appeal from
Chief Magistrate's Court at Nyeri
Civil Case No. E128 of 2009
Jurisdiction invoked
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, "Ndiritu & another v Kubai (On behalf of 32 others) (Environment and Land Appeal E014 of 2023) [2024] KEELC 6008 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 2nd October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6008/eng@2024-09-20

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