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ELCAllowedApplication dated 27/06/2024 (Bungoma CMC ELC No. 7 of 2019; related appeal Bungoma HCCA No. E025 of 2024)· [2025] KEELC 458 (KLR)

Khang’ati (Suing as the Personal Representative of the Estate of the Late David Khang’ati Peter Wafula) v Wanyonyi (Environment and Land Miscellaneous Application E011 of 2024) [2025] KEELC 458 (KLR)

Environment and Land Court
6 February 2025
1,646 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court at Bungoma allowed a late land appeal, ruling that a lawyer's mistake can be a good enough reason to extend appeal time.

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 Bungoma on an application dated 27/06/2024 by the applicant seeking leave to file her appeal out of time against a ruling delivered on 14/02/2024 in Bungoma CMC ELC No. 7 of 2019, which had allowed the respondent's application in its entirety. The applicant explained that an interlocutory judgment in the subordinate court had been set aside; that her advocate inadvertently lodged the appeal in the High Court (Bungoma HCCA No. E025 of 2024), where it was struck out for want of jurisdiction; and that the delay of about three months and two weeks beyond the Section 79G period was unintentional. The respondent opposed, contending that no sufficient reasons were shown, that he had incurred advocates' fees of Kshs. 100,000, and that the application was academic since the decretal sum of Kshs. 510,000 had been paid. Applying the factors in Thuita Mwangi v Kenya Airways Ltd and authorities including Belinda Mural v Amos Wainaina and Edith Gichungu Koine v Stephen Njagi Thoithi, the court held that although the delay was inordinate and counsel indolent, sufficient explanation had been given; that mistakes of a legal adviser may amount to sufficient cause; and that the claimed fees were recoverable, so no actual prejudice was demonstrated. The court was unable to establish whether the decretal sum had actually been paid. The application was allowed with timetabled directions and costs in the cause.

Key legal issues

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01

Whether the delay of about 3 months and 2 weeks in filing the appeal is excusable under Section 79G

Holding

Though the delay was inordinate, sufficient explanation was given; leave to appeal out of time granted

Reasoning

The court applied the Thuita Mwangi v Kenya Airways factors. The delay arose from counsel inadvertently lodging the appeal in the High Court, a forum without jurisdiction. Citing Belinda Mural and Edith Gichungu Koine, the court held it should be hesitant to close the door to justice, that mistakes of counsel may amount to sufficient cause, that the respondent's claimed fees are recoverable and hence no actual prejudice was shown, and that the overriding objective favours hearing the dispute.

p. 4
02

Whether the application is academic because the decretal sum has been paid

Holding

The court found it unclear whether the decretal sum had been paid and for what purpose, and did not decline relief on that basis

Reasoning

The respondent argued the decretal sum had been forwarded to him, rendering the application academic. The applicant deponed she was paying the sum in compliance with the subordinate court's orders while still aggrieved. The court noted the subordinate court had ordered deposit in a joint interest-earning account and could not determine whether the money had been paid and for what purpose, so the argument did not defeat the application.

p. 4

Legal principles established

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  • An appeal may be admitted out of time where the appellant satisfies the court that there is good and sufficient cause for not filing in time, guided by factors including length of and reason for delay, arguability, prejudice, compliance with time limits and public interest.
  • Mistakes of a legal adviser may amount to sufficient cause for purposes of extension of time.
  • No person who approaches the court seeking an opportunity to ventilate grievances should be locked out; courts should weigh extension of time against the overriding objective.

Court orders

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  1. 1.The memorandum of appeal annexed to the supporting affidavit to be filed within 7 days from the date hereof
  2. 2.The Applicant shall file her record of appeal within 30 days of this ruling and ensure the prosecution of the appeal within 1 year
  3. 3.Costs of the application shall be borne in the appeal
Jurisdiction invoked
Section 79G of the Civil Procedure Act (extension of time 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, "Khang’ati (Suing as the Personal Representative of the Estate of the Late David Khang’ati Peter Wafula) v Wanyonyi (Environment and Land Miscellaneous Application E011 of 2024) [2025] KEELC 458 (KLR)", Case Analysis (2025). Application dated 27/06/2024 (Bungoma CMC ELC No. 7 of 2019; related appeal Bungoma HCCA No. E025 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/458/eng@2025-02-06

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