[2018] KEELC 2314 (KLR)
The court held that the mere filing of a Notice of Appeal does not amount to the institution of an appeal before the Environment and Land Court. The statutory and procedural framework requires the filing of a Memorandum of Appeal to properly commence an appeal from a subordinate court. Since the appellant failed to...
Source-derived case information.
- Citation
- [2018] KEELC 2314 (KLR)
- Parties
- Plaintiff: John Kamakia Nthatu; Defendant: Festus Kithinji Njagi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 04 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Existence and Validity of Appeal
- Outcome
- Appeal not properly instituted; file marked as closed and matter removed from register of pending appeals.
- Judges
- FM Njoroge
- Legal Topics
- Appeal Timelines, Notice of Appeal, Memorandum of Appeal, Appeal Admissibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kamakia Nthatu
Plaintiff
Festus Kithinji Njagi
Defendant
Procedural Posture
Civil Appeal / Ruling on Existence and Validity of Appeal
Legal Issues
- 1 Whether the filing of a Notice of Appeal constitutes a valid appeal before the Environment and Land Court.
- 2 Whether the appellant complied with the statutory requirements for instituting an appeal from the subordinate court.
Ratio Decidendi
The court held that the mere filing of a Notice of Appeal does not amount to the institution of an appeal before the Environment and Land Court. The statutory and procedural framework requires the filing of a Memorandum of Appeal to properly commence an appeal from a subordinate court. Since the appellant failed to file a Memorandum of Appeal within the prescribed period, and no extension or explanation for delay was provided, there was no valid appeal before the court. Consequently, the Notice of Appeal was deemed to serve no useful purpose and the matter was ordered closed and removed from the register of pending appeals.
Court Disposition
Appeal not properly instituted; file marked as closed and matter removed from register of pending appeals.
Orders
- This file is marked as closed.
- The matter is removed from the register of pending appeals at Chuka ELC Court.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CIVIL APPEAL CASE NO. 04 OF 2018
JOHN KAMAKIA NTHATU .......................................... PLAINTIFF
VERSUS
FESTUS KITHINJI NJAGI ........................................ DEFENDANT
RULING
1. The plaintiff in this matter, on 6th April, 2018, filed a Notice of Appeal which is in the following format:
NOTICE OF APPEAL
Take notice that John Kamakia Nthatu the appellant herein being dissatisfied with the judgment of Hon. Messa Principal Magistrate at Marimanti Law Courts in Civil Case No. 45 of 2018 on the 23. 3.2018 intends to appeal to the high court of Kenya at Chuka against the whole of the said decision.
The address of service for the appellant shall be M/S Kevin Nyenyire & Co. Advocates P. O. Box 2702-60200 Meru, Murerwa House 1st Floor Suite 12B.
IT IS INTENDED TO SERVE COPIES OF THIS NOTICE UPON:
Kijaru Njeru & Co. Advocates
DATED AT MERU THIS 5TH DAY OF APRIL, 2018
…………………………………
KEVIN NYENYIRE & CO.
ADVOCATES FOR THE APPELLANT
2. Section 79 G of the Civil Procedure Act gives the timeline within which an appeal should be filed before this court. It says:
“79 G. Time for filing appeals from subordinate courts
“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.
“Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
3. In this matter the Notice of Appeal was filed on 6th April, 2018 and no other action was taken. On 13th July, 2018, through registered post the appellant and his advocate were given notice to come to court for directions on 24th July, 2018. They did not come to court.
4. It seems to me that a Notice of Appeal does not constitute an appeal. It also seems to me that the spirit of the law envisaged by the Civil Procedure Rules is that an appeal is deemed as filed when the appellant files a Memorandum of Appeal. It is only in the Court of Appeal that an appeal is deemed to have been filed under rules of that court when a Notice of Appeal has been given.
5. I find that the plaintiff has not properly filed an appeal. This court is required through the understanding between it and the judiciary that appeals should be heard and determined within 360 days of their being filed. It is about three and a half months since the apposite Notice of Appeal was filed. As I have found that no appeal exists in this matter, the Notice of Appeal filed in this matter is deemed to be of no useful purpose and of no consequence.
6. In the circumstances, this file should be marked as closed and I order that this matter be removed from the register of pending appeals at Chuka ELC Court.
7. It is so ordered.
Delivered in open Court at Chuka this 24th day of July, 2018 in the presence of:
CA: Ndegwa
P.M. NJOROGE
JUDGE