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ELCAllowedNot stated in the judgment text provided· [2024] KEELC 6567 (KLR)

Murungi v Attorney General & 2 others (Environment and Land Constitutional Petition E007 of 2023) [2024] KEELC 6567 (KLR)

High Court of Kenya (court name not expressly stated in the judgment text)
2 October 2024
CNC K Nzili
791 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Meru allowed a late appeal, confirming that courts can extend time when delays are short, explained, and nobody suffers prejudice.

What this practically means

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Executive summary

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This first-instance ruling by the High Court at Meru (Hon. C K Nzili, Judge) determined a motion by the applicant seeking enlargement of time to file a notice of appeal out of time following the dismissal of a petition on 22 May 2024. The application was premised on Order 50 Rule 6 of the Civil Procedure Rules. The applicant explained a delay of about one month on the ground that, upon reviewing the judgment, he discovered that the decision of the Minister contained two conflicting dates, after which he instructed his advocate; he also asserted that the appeal had high chances of success and that no prejudice would befall the respondents. The 3rd respondent opposed, arguing the decision had been served before judgment, that the applicant was represented at the hearing, that the delay was unexplained, that no draft notice of appeal, memorandum and record of appeal had been annexed, and that the sixty-day period for filing the record of appeal had lapsed, citing Turea Limited T/A Dr Martress v Ali Mohamed. The court accepted that the operative law was Section 7 of the Appellate Jurisdiction Act rather than Order 50 Rule 6, and applied the Thuita Mwangi v Kenya Airways criteria: length and reason for the delay, chances of success, and prejudice. Finding the delay about one month and unopposed by demonstrated prejudice, and guided by Article 159 of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act, the court allowed the application on 2 October 2024. No costs order was recorded.

Key legal issues

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01

Correct statutory basis for extending time to file a notice of appeal

Holding

Although the application was premised on Order 50 Rule 6 of the Civil Procedure Rules, the operative provision is Section 7 of the Appellate Jurisdiction Act, which empowers the High Court to extend time for giving notice of intention to appeal even after expiry

Reasoning

The court noted the application cited Order 50 Rule 6 but accepted the respondents' observation that Section 7 of the Appellate Jurisdiction Act governs extension of time for notice of appeal from a High Court judgment. It followed from this provision and the cited decisions that the court has power to extend time, though the discretion must be exercised on sound judgment.

p. 2
02

Whether the delay was excusable and whether extension should be granted

Holding

The delay of about one month was weighed against the absence of prejudice to the 3rd respondent; the applicant stood to suffer more prejudice if the right of appeal was curtailed, so the application was allowed

Reasoning

The court found the delay was about one month, explained as the time the applicant took to receive the judgment, read it, discover the conflicting dates in the Minister's decision and give instructions. Although no draft memorandum or notice of appeal was annexed, the 3rd respondent had not demonstrated prejudice, and the applicant would suffer more prejudice if denied the right of appeal.

p. 2

Legal principles established

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  • The High Court may extend time for giving notice of intention to appeal even after the time has expired, but the discretion must be exercised on sound judgment considering the totality of facts and law
  • In extension-of-time applications the court considers the length of the delay, reasons for the delay, chances of the appeal succeeding, and degree of prejudice to the respondent

Court orders

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  1. 1.The application for enlargement of time to file a notice of appeal out of time is allowed

Authorities

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Legislation

  • Civil Procedure RulesOrder 50 Rule 6
  • Appellate Jurisdiction ActSection 7
  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (5)

  • Turea Limited T/A Dr Martress v Ali Mohamed
    (2022) KECA 1271 (KLR)
  • Kenya Airports Authority & Another v Timothy Nduvi Mutungi
    Civil Application No. Nai 165 of 2013 (UR 113/2013) (2014) eKLR
  • Jayne Nyagoha Emisembe v Nairobi County Branch (KUPPET)
    [2019]
  • Thuita Mwangi v Kenya Airways Ltd
    [2003] eKLR
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    (Civil Application No. Nai 255 of 1997) (unreported)
Jurisdiction invoked
Order 50 Rule 6 of the Civil Procedure Rules; Section 7 of the Appellate Jurisdiction Act; Sections 1A, 1B and 3A of the Civil Procedure Act; Article 159 of the Constitution

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, "Murungi v Attorney General & 2 others (Environment and Land Constitutional Petition E007 of 2023) [2024] KEELC 6567 (KLR)", Case Analysis (2024). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6567/eng@2024-10-02

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