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ELCPartially AllowedELC Misc. Application (Extension of Time)· [2025] KEELC 5320 (KLR)

Little Theatre Club v Talentos Beach Resort & 2 others (Environment and Land Miscellaneous Case E096 of 2024) [2025] KEELC 5320 (KLR)

Environment and Land Court
16 July 2025
1,257 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a bank extra time to appeal after its lawyer filed in the wrong court, but made it bear the risk on costs.

What this practically means

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Executive summary

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By a notice of motion dated 27th November 2024, the applicant sought enlargement of time to file a memorandum of appeal against the ruling of Hon. G. Sogomo, PM, delivered on 21st June 2024 in Mombasa MCELC No. E070 of 2024, which dismissed its preliminary objection on jurisdiction. The applicant explained that its appeal, filed within time on 19th July 2024, had been inadvertently lodged in the wrong court (the High Court, as HCCA No. E212 of 2024) due to counsel's mistake; upon discovering the error it withdrew that appeal on 26th November 2024 and promptly brought this application. The 1st respondent opposed through the affidavit of its director, Peter Chebulobi Mindila, asserting that the applicant had earlier promised to abandon the appeal for thrown away costs, that the application came over five months late, and that the intended appeal lacked merit. The court framed two issues: whether the applicant had established a case for enlargement of time, and who should bear the costs. Applying the principles in the cited authorities, S. M. Kibunja, J found the applicant's explanation — a timely but mistaken filing, prompt withdrawal, payment of thrown away costs, and absence of inordinate delay — constituted sufficient and reasonable cause under section 79G of the Civil Procedure Act. The application was allowed in terms of prayer (b), with leave granted to file the memorandum of appeal within seven days, failing which the leave lapses automatically. Although costs ordinarily follow the event under section 27, the court directed that costs abide the outcome of the intended appeal since the mistake was attributable to the applicant and its counsel.

Key legal issues

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01

Whether the applicant established good and sufficient cause under section 79G of the Civil Procedure Act for enlargement of time to file its appeal.

Holding

The court found that the applicant's inadvertent filing of the appeal before the High Court within time, its prompt withdrawal upon discovering the error, payment of thrown away costs, and prompt filing of the instant application constituted sufficient and reasonable explanation for the delay.

Reasoning

The court weighed the explanation offered: the appeal was filed within time on 19th July 2024 but before the wrong court (HCCA No. E212 of 2024) due to counsel's mistake. Upon discovering the error, the applicant withdrew it on 26th November 2024 and immediately sought extension. Though the exact date of discovery was not disclosed, the court found the applicant acted without inordinate delay and demonstrated genuine determination to pursue the appeal, satisfying the section 79G threshold for good and sufficient cause.

p. 3
02

Who should bear the costs of the application.

Holding

Although the applicant succeeded, costs were made to abide the outcome of the intended appeal rather than being awarded to the applicant forthwith.

Reasoning

The court applied section 27 of the Civil Procedure Act, noting costs follow the event unless the court directs otherwise. Given the delay arose entirely from the applicant's own and its counsel's mistake in filing the appeal before the wrong court, the court deemed it just that costs not follow the event immediately but await the appeal's outcome.

p. 3

Legal principles established

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  • Costs follow the event except where the court has good reasons to direct otherwise, and where an applicant's delay results from filing an appeal in the wrong court through its own counsel's mistake, that mistake may justify denying immediate costs even on a successful extension application.

Court orders

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  1. 1.The application dated 27th November 2024 is allowed in terms of prayer (b), and leave to file the intended appeal granted
  2. 2.The Memorandum of Appeal be filed and served within seven (7) days from the date of the order, in default of which the leave granted shall lapse automatically
  3. 3.Costs in the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 27

Cases cited (8)

  • Edith Gichungu Koine v Stephen Njagi Thoithi & Another
    [2015] KECA 874 (KLR)
  • Onyango v Tribe Hotel Limited
    [2024] KECA 766 (KLR)
  • Stecol Corporation Limited v Susan Awuor Mudemb
    [2021] KEHC 2912 (KLR)
  • Diplack Kenya Limited v William Muthama Kitonyi
    [2018] eKLR
  • Paul Musili Wambua v Attorney General & 2 Others
    [2015] eKLR
  • Mwangi & Another v Muiruri
    Civil Appeal No. 327 of 2023 [2024] KEHC 5830 (KLR)
  • Githau v Kagiri & Another
    (Civil Appeal No. 314 of 2023) [2024] KEHC 6320 (KLR)
  • Nicholas Korir arap Salat v IEBC and 7 Others
    [2014] eKLR
On appeal from
Chief Magistrate's Court, Mombasa
Mombasa MCELC No. E070 of 2024
Jurisdiction invoked
Section 79G of the Civil Procedure Act (enlargement of time to file an appeal)

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, "Little Theatre Club v Talentos Beach Resort & 2 others (Environment and Land Miscellaneous Case E096 of 2024) [2025] KEELC 5320 (KLR)", Case Analysis (2025). ELC Misc. Application (Extension of Time). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5320/eng@2025-07-16

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