[2020] KEELC 87 (KLR)
The court found that the appeal was filed almost two years after the delivery of the judgment being challenged, well outside the thirty-day period stipulated by Section 79G of the Civil Procedure Act. The appellant did not seek or obtain an extension of time to file the appeal out of time, nor was there any...
Source-derived case information.
- Citation
- [2020] KEELC 87 (KLR)
- Parties
- Appellant: Marcell Gakii (Legal administrix of the estate of M’Irianki Murungi); Respondent: Andrew Kaburu M’Rinkuri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 40 of 2020
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal struck out with costs to the respondent.
- Legal Topics
- Appeal Out of Time, Record of Appeal Completeness, Extension of Time, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Marcell Gakii (Legal administrix of the estate of M’Irianki Murungi)
Appellant
Andrew Kaburu M’Rinkuri
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal was filed within the statutory time limit under Section 79G of the Civil Procedure Act.
- 2 Whether the appellant sought and obtained extension of time to file the appeal out of time.
- 3 Whether the record of appeal was complete and proper for consideration by the court.
Ratio Decidendi
The court found that the appeal was filed almost two years after the delivery of the judgment being challenged, well outside the thirty-day period stipulated by Section 79G of the Civil Procedure Act. The appellant did not seek or obtain an extension of time to file the appeal out of time, nor was there any explanation or application for such extension on record. Furthermore, the record of appeal was incomplete, as it omitted witness statements and exhibits that formed part of the evidence in the trial court. In light of these procedural defects, the court held that there was no proper appeal before it and struck out the suit with costs to the respondent.
Court Disposition
Appeal struck out with costs to the respondent.
Orders
- The appeal is struck out for being filed out of time without leave of court.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC APPEAL NO 40 OF 2020
MARCELL GAKII (Legal administrix of the estate of M’IRIANKI MURUNGI.........APPELLANT
VERSUS
ANDREW KABURU M’RINKURI..................................................................................RESPONDENT
(Being an appeal from the Judgment of Hon C.A Mayamba (RM)
delivered on 27/9/2017 in Meru CMCC No. 352 of 2010)
JUDGMENT
1. This appeal was dead on arrival. Reason; the same was filed in contravention of the provisions of Section 79G of the Civil Procedure Act which stipulates as follows;
“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 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”.
2. The judgment sought to be challenged was delivered on 27. 9.2017 while the appeal was filed almost two years later on 12. 6.2019. By error or design, the Record of Appeal filed on 17. 12. 2019 indicates that the lower court’s judgment was delivered on 27. 9.2019 which is obviously wrong.
3. The appellant did not bother to seek extension of time, if he did, he has not indicated so anywhere in this appeal. In the Court of Appeal case of Daniel Nkirimpa Monirei vs. Sayialel Ole Koilel & 4 Others (2016) e KLR, the court had struck out a Record of Appeal which had been filed outside the stipulated time-lines without leave of the court.
4. Further, it is noted that the Record of Appeal is incomplete as the statements of the witnesses which were adopted as evidence as well as the exhibits produced in the trial court have been omitted in the record of appeal. In the circumstances, I find that there is no proper appeal lodged before this court. This suit is hereby struck out with costs to the respondent.
DATED, SIGNED AND DELIVERED AT MERU THIS28THDAYOCTOBER, 2020
HON. LUCY. N. MBUGUA
ELC JUDGE
ORDER
The date of delivery of this Judgment was given to the advocates for the parties through a virtual session via Microsoft teams on 16. 9.2020. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this Judgment has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.
HON. LUCY N. MBUGUA
ELC JUDGE