[2018] KEELC 1541 (KLR)
The court found that the appellant filed the memorandum of appeal outside the statutory time limit set by section 79(c) of the Civil Procedure Act and did not seek or obtain an extension of time. Additionally, the appellant failed to comply with court directions to file submissions and did not prosecute the appeal....
Source-derived case information.
- Citation
- [2018] KEELC 1541 (KLR)
- Parties
- Appellant: Daniel Kiunga M’Kiambati; Respondent: Isaya M’Kirera M’Kiambati
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 34 of 2017
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal struck out
- Legal Topics
- Appeal Timelines, Striking Out Appeal, Extension of Time, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kiunga M’Kiambati
Appellant
Isaya M’Kirera M’Kiambati
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal was filed within the statutory time limit under section 79(c) of the Civil Procedure Act.
- 2 Whether the appellant prosecuted the appeal as directed by the court.
Ratio Decidendi
The court found that the appellant filed the memorandum of appeal outside the statutory time limit set by section 79(c) of the Civil Procedure Act and did not seek or obtain an extension of time. Additionally, the appellant failed to comply with court directions to file submissions and did not prosecute the appeal. The combination of these procedural failures rendered the appeal incompetent. The court relied on statutory provisions and relevant case law to conclude that the appeal must be struck out with costs to the respondent.
Court Disposition
appeal struck out
Orders
- The appeal is hereby struck out with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT
MERU ELC APPEAL NO. 34 OF 2017
(Formerly Meru H.C.C.A NO. 69 of 2017)
DANIEL KIUNGA M’KIAMBATI................................APPELLANT
VERSUS
ISAYA M’KIRERA M’KIAMBATI.............................RESPONDENT
JUDGMENT
(AN APPEAL FROM THE JUDGMENT OF HON. H.N NDUNG’U
CM MERUDELIVERED ON 6. 7.2017 IN MERU CMCC NO. 37 OF 2014)
1. On 25. 4.2018, the court gave directions for appellant to file and serve their submissions within 14 days and respondent was to file their submissions thereafter within 14 days. Appellant did not comply with this direction but respondent went ahead and filed his submissions on 31. 6.2018. On 25. 7.2018, counsel for the appellant urged the court to grant an extension of 7 days to file submissions.
2. However, as the court was proceeding on recess on 1. 8.2018, the court indulged the appellant’s side to file their submissions by 31. 7.2018. I however did not see any such submissions by the time I was packing this file on 1. 8.2018 to proceed to write the judgment. I therefore conclude that appellant has not undertaken to prosecute this appeal.
3. It has also been pointed out by the respondent that this appeal is time barred. I have looked at the records and indeed judgment was delivered on 6. 7.2017 whereas the memorandum of appeal was filed on 18. 8.2017. There is no evidence to show that appellant had sought for extension of filing this appeal out of time. I therefore find that the appeal was filed contrary to the provisions of section 79 (c) of the civil procedure act. I also find that the cases cited by the respondent on this point Asy vs. DJBM (2017) eKLRand Meru HCC No. 306 of 2013 Samuel Kilemi & another vs. Festus Gituma Kuthukaare relevant to this case.
4. In light of the foregoing, I need not delve into the merits of this appeal.
5. The appeal is hereby struck out with costs to the respondent.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 3RD OCTOBER, 2018 IN THE PRESENCE OF:-
C/A: Galgalo/Faith
C.P Mbaabu present
Respondent
HON. LUCY. N. MBUGUA
ELC JUDGE