Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNotice of motion dated 16th April, 2024· [2024] KEELC 6939 (KLR)

Murithi v Nkoroi (Environment and Land Appeal E022 of 2023) [2024] KEELC 6939 (KLR)

Environment and Land Court
24 October 2024
3,087 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court gave a landowner a second chance to appeal after his lawyer failed to tell him about a judgment, but made him pay the legal costs anyway.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Meru (C.K Yano, ELC Judge) determined a notice of motion dated 16th April 2024 brought under Section 7 of the Appellate Jurisdiction Act seeking extension of time to serve a notice of appeal out of time, following a Court of Appeal judgment delivered on 20th March 2024 that reinstated the judgment of 14th February 2019 in Nkubu SPMC ELC No. 76 of 2010, which awarded the appellant/respondent general damages of Kshs. 400,000. The applicant, Samwel Nkoroi, explained that he was absent at the delivery of judgment and his former advocate failed to inform him of the outcome until 11th April 2024; he moved the court five days later. The respondent opposed, alleging a history of indolence and blaming of successive advocates, and noting the judgment was delivered in the presence of counsel. Applying the Supreme Court's criteria in Nicholas Kiptoo Arap Korir Salat and the balancing of competing interests in Portreitz Maternity, the court held the approximately seven-day delay excusable and satisfactorily explained, while cautioning the applicant that a case belongs to the party and not to counsel. The application was allowed with the intended notice of appeal to be filed and served within 14 days, but the applicant was condemned to bear the costs of the application.

Key legal issues

#
01

Whether the delay of about 7 days in filing the notice of appeal was excusable

Holding

The delay was excusable and satisfactorily explained, being occasioned by the applicant's former advocate failing to inform him of the judgment outcome until 11th April, 2024

Reasoning

The court applied the Salat criteria and the principle that excusable delays are unforeseeable and beyond the party's control. The applicant learned of the judgment only on 11th April 2024 through his former advocate's failure, and moved the court promptly thereafter, filing the application on 16th April 2024. The court nonetheless cautioned the applicant against shifting blame to counsel.

p. 5
02

Whether the court has power to extend time for giving notice of appeal after expiry

Holding

Section 7 of the Appellate Jurisdiction Act confers power on the court to extend time even where the time for giving such notice has expired

Reasoning

The court found the statutory jurisdiction in Section 7 of the Appellate Jurisdiction Act, which permits extension of time for giving notice of intention to appeal notwithstanding expiry. The discretion is judicial and must be confined to the rule of reason and justice, exercised on a case-by-case basis balancing the parties' competing interests.

p. 4

Legal principles established

#
  • Extension of time is an equitable remedy available only to a deserving party, and the applicant bears the burden of explaining the delay to the satisfaction of the court
  • A party cannot simply blame former advocates for failure to file a notice of appeal in time; a case belongs to the party, not counsel
  • The right of appeal must be balanced against the successful plaintiff's right to enjoy the fruits of judgment

Court orders

#
  1. 1.The applicant's application dated 16th April, 2024 is allowed
  2. 2.The intended notice of appeal be filed and served within 14 days from the date of the ruling
On appeal from
Court of Appeal
judgment delivered 20th March 2024 reinstating the judgment dated 14th February, 2019 in Nkubu SPMC ELC No. 76 of 2010
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act (Cap 9) Laws of Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Murithi v Nkoroi (Environment and Land Appeal E022 of 2023) [2024] KEELC 6939 (KLR)", Case Analysis (2024). Notice of motion dated 16th April, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6939/eng@2024-10-24

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