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ELCDismissedNot stated in judgment (application dated 22.3.2024)· [2024] KEELC 6298 (KLR)

Njiru v Wakai (Miscellaneous Application E008 of 2024) [2024] KEELC 6298 (KLR)

Environment and Land Court
30 September 2024
JMJ. M. Mutungi
2,351 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 is a ruling of the Environment and Land Court at Kerugoya (J. M. Mutungi, ELC Judge) delivered virtually on 30th September 2024 on a Notice of Motion dated 22nd March 2024 by which the Applicant, Moses Waweru Njiru, sought leave to file an appeal out of time against the judgment of the Principal Magistrate, Gichugu, in Gichugu PM ELC No E008 of 2023 delivered on 1st December 2023. The Respondent opposed the application through a Preliminary Objection and Replying Affidavit, contending that the Supporting Affidavit offended Rule 9 and Rule 5 of the Oaths and Statutory Declarations Act because the sole annexure was not marked or sealed and the jurat showed the affidavit sworn at Chuka while the attesting commissioner's stamp bore a Nairobi address. The court canvassed both matters by written submissions. Dismissing the Preliminary Objection, the court held a commissioner of oaths may practise at a physical address different from his postal address, and that the failure to mark the single annexure was not fatal as no identification confusion was possible. On the extension of time, applying the principles in Salat v IEBC and Chemaringo v Kibet, the court found the approximately three-month delay wholly unexplained: the applicant offered no viable reason, attributed the lapse to unspecified 'reasons beyond his control', and did not furnish the judgment or decree to demonstrate a viable appeal. The application was dismissed with no order as to costs, each party bearing their own costs.

Key legal issues

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01

Whether the affidavit defects (jurat showing Chuka while commissioner's stamp showed Nairobi address; annexure not marked and sealed) warranted expungement

Holding

No. The postal-versus-physical address discrepancy does not invalidate attestation, and the failure to mark the sole annexure (a Draft Memorandum of Appeal) was not fatal since there was no risk of misidentification.

Reasoning

The court found the Preliminary Objection did not meet the Mukisa Biscuit threshold. A commissioner may have a physical address at one place and a postal address elsewhere, so the jurat discrepancy was immaterial, especially as it was not alleged the deponent never appeared before a commissioner. The only annexure was a draft memorandum of appeal which could not be mistaken for want of identification; its grounds could equally have appeared in the affidavit itself.

p. 4
02

Whether the delay of about three months in seeking leave to appeal out of time was excusable

Holding

No. The applicant offered no viable explanation for the delay, was casual in approaching the court, and did not even furnish the judgment or decree to demonstrate a viable appeal; the application was dismissed.

Reasoning

Applying the Salat and Chemaringo principles, extension of time is an equitable discretion requiring a satisfactory explanation for delay. The judgment was delivered on 1st December 2023 and the application filed in early April 2024, yet the applicant gave no reasons beyond asserting dissatisfaction and a desire for a second opinion, and attributed the lapse to unexplained 'reasons beyond his control'. Without even a draft judgment or decree, the court could not assess the viability of the intended appeal.

p. 5

Legal principles established

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  • An applicant for extension of time bears the burden of giving a reasonable, satisfactory explanation for the delay to the satisfaction of the Court
  • A Commissioner for Oaths may practise at one physical address while holding a different postal address, and this does not invalidate an affidavit's attestation

Court orders

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  1. 1.The Notice of Motion application dated 22nd March 2024 is dismissed
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Oaths and Statutory Declarations ActRule 9 (also referred to as Section 9)
  • Oaths and Statutory Declarations ActRule 5 (also referred to as Section 5)
  • Oaths and Statutory Declarations ActCap 15
  • Court of Appeal RulesRule 4
  • Constitution of Kenyanot specified (referenced re access to justice)

Cases cited (6)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Gachugu v Karaine & 3 others
    (2022) KECA 1411 (KLR)
  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    (2018) eKLR
  • Jeremiah Nyanwara Matoke v IEBC & 2 others
    (2017) eKLR
  • Solomon Omwega Omache & another v Zachary O. Ayieko & 2 others
    (2016) eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others
    (2014) eKLR
On appeal from
Principal Magistrate's Court, Gichugu
Gichugu PM ELC No E008 of 2023
Jurisdiction invoked
Inherent discretion to extend time for filing an appeal (leave to appeal out of time)

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, "Njiru v Wakai (Miscellaneous Application E008 of 2024) [2024] KEELC 6298 (KLR)", Case Analysis (2024). Not stated in judgment (application dated 22.3.2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6298/eng@2024-09-30

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