[2023] KEELC 17962 (KLR)
The appeal was lodged more than six months after the impugned ruling, far outside the statutory limitation period of 30 days prescribed by section 79G of the Civil Procedure Act and the Environment and Land Court Act. No formal application for enlargement of time was made or served on the respondents. The court held...
Source-derived case information.
- Citation
- [2023] KEELC 17962 (KLR)
- Parties
- Appellant: Charles Njuguna (Sued as the administrator of the Estate of Francis Njuguna); Appellant: Antony Andrew Njuguna (Sued as the administrator of the Estate of Francis Njuguna); Respondent: Molyn Credit Limited; Respondent: James Njoroge Kamau (Suing through his donee Louiza Eunice Njoki)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E119 of 2022
- Procedural Posture
- Environment and Land Appeal / Ruling on Preliminary Objection Regarding Competence of Appeal
- Outcome
- Appeal struck out as incompetent for being filed out of time without leave of court.
- Judges
- BM Eboso
- Legal Topics
- Appeal Lodging Period, Limitation of Actions, Jurisdiction of Court, Striking Out Incompetent Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Njuguna (Sued as the administrator of the Estate of Francis Njuguna)
Appellant
Antony Andrew Njuguna (Sued as the administrator of the Estate of Francis Njuguna)
Appellant
Molyn Credit Limited
Respondent
James Njoroge Kamau (Suing through his donee Louiza Eunice Njoki)
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Preliminary Objection Regarding Competence of Appeal
Legal Issues
- 1 Whether the appeal was lodged within the statutory limitation period of 30 days.
- 2 Whether the court has jurisdiction to entertain an appeal filed out of time without an order enlarging time.
- 3 Whether an oral application for enlargement of time is competent.
Ratio Decidendi
The appeal was lodged more than six months after the impugned ruling, far outside the statutory limitation period of 30 days prescribed by section 79G of the Civil Procedure Act and the Environment and Land Court Act. No formal application for enlargement of time was made or served on the respondents. The court held that, in the absence of a prior order enlarging time, it lacked jurisdiction to entertain the appeal. An oral request for extension of time was procedurally improper, as such an application must be made formally and served on the respondents to allow them an opportunity to respond. Consequently, the appeal was struck out as fatally incompetent for being filed out of time...
Court Disposition
Appeal struck out as incompetent for being filed out of time without leave of court.
Orders
- The appeal is struck out for being lodged outside the limitation period of 30 days.
- The appellants shall bear the costs of the appeal.
Full Case Text
Judgment text and source record
24 paragraphs
Njuguna (Sued as the administrator of the Estate of Francis Njuguna) & another v Molyn Credit Limited & another (Environment and Land Appeal E119 of 2022) [2023] KEELC 17962 (KLR) (12 April 2023) (Ruling)
Neutral citation: [2023] KEELC 17962 (KLR)
Republic of Kenya
In the Environment and Land Court at Thika
Environment and Land Appeal E119 of 2022
BM Eboso, J
April 12, 2023
Between
Charles Njuguna (Sued as the administrator of the Estate of Francis Njuguna)
1st Appellant
Antony Andrew Njuguna (Sued as the administrator of the Estate of Francis Njuguna)
2nd Appellant
and
Molyn Credit Limited
1st Respondent
James Njoroge Kamau (Suing through his donee Louiza Eunice Njoki)
2nd Respondent
Ruling
RULING [EX-TEMPORE] 1. Under Order 42 rule 1 of the Civil Procedure Rules an appeal to this court is lodged in the form of a memorandum of appeal signed in the same manner as a pleading. Under section 79G of the Civil Procedure Act, A party seeking to appeal to this court is required to lodge the appeal within 30 days from the date of the impugned decision. The Environment and Land Court Act provides for a similar limitation period of 30 days.
2. It is clear from the memorandum of appeal dated 20/12/2022 that the impugned ruling was rendered on 8/6/2022. The memorandum of appeal was presented to this court on 20/12/2022 and an official receipt was issued to the appellant on 21/12/2022. Lodging of the Appel was done more than six months after the impugned ruling had been rendered.
3. It is therefore clear from the record and form the submissions by counsel for the appellants that there is no competent appeal before this court. Put differently, this appeal is fatally incompetent. The result is that the appeal stands to be struck out on the ground that it was filed outside the limitation period of 30 days. Counsel has orally urge the court to exercise discretion and enlarge time. An application of that nature ought to be formal so that it is served on the respondents and the respondents are afforded the opportunity to respond to the application.
3. In the end, without prior order enlarging the time for lodging an appeal against the impugned decision, this court has no jurisdiction to entertain this appeal beyond this point [see Owners of Motor Vessel “Lillian S” v Caltex (K) Limited].
4. Consequently, this appeal is struck out on the ground that it was lodged outside the limitation period of 30 days. The appellants shall bear costs of the Appeal.
B M EBOSOJUDGE12/4/2023In the Presence of: -Mr Githii for the AppellantMs Nduta and Mr Akech for the RespondentsCourt Assistant: Hinga