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ELCAllowedNotice of motion dated 17.05.2023 (arising from Siakago ELC No. 43 of 2019)· [2024] KEELC 6207 (KLR)

Muchee v Njiru (Miscellaneous Application E007 of 2023) [2024] KEELC 6207 (KLR)

Environment and Land Court
4 June 2024
1,613 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a late appeal because the landowner was never told the judgment had been delivered online.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Embu (A. Kaniaru, J) on a notice of motion dated 17.05.2023 by Simon Bungu Muchee, the defendant in Siakago ELC No. 43 of 2019, seeking leave to appeal out of time against an undated judgment of Principal Magistrate W. Ngumi which ordered his eviction from suit land. The applicant explained that he was not notified of the online delivery of judgment, which the decree showed was delivered on 17.08.2022, and only learnt of it on 04.05.2023 when served with the decree; he filed the motion on 23.05.2023. The respondent opposed, urging that the judgment was fairly reached and the application abusive. The court first expunged the respondent's replying affidavit for want of service despite a direction of 12.10.2023. Framing the sole issue as whether the applicant was entitled to leave to appeal out of time, the court applied Section 79G of the Civil Procedure Act and the Leo Sila Mutiso principles (length and reason for delay, arguability, prejudice), as cited in Sigilai v Mugambi and Nicholas Kiptoo Arap Salat v IEBC. It found the applicant's ignorance of the judgment and its contents to be good and sufficient cause, the application brought without unreasonable delay, the absence of a memorandum of appeal not fatal, and no prejudice to the respondent. The court allowed the motion in its entirety and made no orders as to costs.

Key legal issues

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01

Whether the applicant had good and sufficient cause for not filing his appeal within 30 days under Section 79G

Holding

Yes - the applicant was not notified of the online delivery of judgment and only learnt of it upon service of the decree; his explanation was good and sufficient.

Reasoning

Judgment was delivered on notice after the magistrate's transfer, but no notice issued to the applicant. He learnt of the judgment on 04.05.2023 when served with the decree and moved the court about two weeks and five days later, without unreasonable delay. Unawareness of the judgment's existence and contents made it impossible to file an appeal in time.

p. 3
02

Whether the absence of a memorandum of appeal defeats the application

Holding

No - though necessary to demonstrate arguability, its absence is not fatal where the other reasons are compelling.

Reasoning

The court weighed all four Leo Sila Mutiso factors. It found the explanation for the delay compelling even without the memorandum, and found the applicant's constitutional right of appeal should not be denied where no prejudice would be occasioned to the respondent by granting leave.

p. 3
03

Whether the respondent's unserved replying affidavit should be expunged

Holding

Yes - there was no evidence of service as directed, so it was expunged.

Reasoning

The court had on 12.10.2023 directed the respondent to serve the replying affidavit. No affidavit of service or evidence of service appeared on record. The court was satisfied service had not been effected as directed and struck the affidavit out.

p. 2

Legal principles established

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  • Extension of time is discretionary and guided by the length of and reason for delay, arguability of the appeal and prejudice to the respondent (Leo Sila Mutiso principles).
  • Failure to attach a memorandum of appeal is not fatal to an application for leave to appeal out of time.

Court orders

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  1. 1.Leave granted to the applicant to appeal against the judgment of the principal magistrate in Siakago ELC No. 43 of 2019
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 79
  • Civil Procedure RulesOrder 51 rule 1

Cases cited (5)

  • Shah v Mbogo & Anor
    [1967] EA 116
  • Stanley Kahoro Mwangi & 2 Others v Kanyamwi Trading Co Ltd
    [2015] Eklr
  • Leo Sila Mutiso v Hellen Wangari Mwangi
    [1990] 2 EA 231
  • Sigilai v Mugambi (Civil Application E034 of 2022)
    [2023] KECA 637 (KLR)
  • Nicholas Kiptoo Arap Salat v IEBC
    [2013] eKLR
Jurisdiction invoked
Section 79G of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules

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, "Muchee v Njiru (Miscellaneous Application E007 of 2023) [2024] KEELC 6207 (KLR)", Case Analysis (2024). Notice of motion dated 17.05.2023 (arising from Siakago ELC No. 43 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6207/eng@2024-06-04

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