The application is dated 14th April 2025 and is brought under Article 162 (B) of The Constitution 2010, Section 13 of the Environment & Land Court Act, Section 79G of The Civil Procedure Act, and Order 51 Rules 1 of The Civil Procedure Rules Sections 1A, 1B and 3A of The Civil Procedure Act seeking the following orders;
1. That the application be certified as urgent and service thereof be dispensed with in the first instance.
2. That there be an order staying all the proceedings in Machakos MC.ECL NO 67 OF 2020 pending the hearing and determination of this application inter-partes.
3. That there be an order dismissing the appeal for want of jurisdiction since the same falls under the jurisdiction of the Environment and Land Court, rather than the High Court and the appeal offends the provisions of section 13 of the Environment & Land Court Act.
4. That there be an order dismissing the appeal for having offended the provisions of section 79G of The Civil Procedure Act, having been filed outside the thirty (30) days limitation and without leave of the court.
The application is based on the following grounds that the appeal arises from the judgment of the Machakos Magistrate Court in CM.ELC CASE NO. 67 OF 2020, and with the establishment of the Environment and Land Court, the proper appeal should have been filed before the Environment and Land Court, rather than in High Court. That, as a consequence of the foregoing, the High Court lacks jurisdiction to hear this matter and the same should be dismissed with costs. That the above notwithstanding, the impugned judgment of the Magistrates Court was delivered on the 9th November 2023, while the memorandum of appeal was filed on 2nd May 2025, which is eighteen (18) months after the judgment. That it is clear that the memorandum of appeal offends the provisions of section 79G of the Civil Procedure Act, having been filed outside the statutory 30 days and without leave of the court.
That the Appellant initially filed an application for review before the trial court but the same was dismissed on 2nd May 2025. Consequently, the Appellant should have appealed the order dismissing the application but has now been misled to appeal the judgment, believing that the application cured the time limitations. That the proceedings of the trial court have not come to a halt after the application was dismissed, the Appellant herein proceeded to file another application for stay of execution pending the hearing of the appeal. That stay of execution orders cannot exist where the appeal is improperly before the court. That it is clear that the Appellant is manipulating the court processes to take the respond in rounds and deny the right to his land. The application is further supported by the annexed affidavit of Daniel Kiendi Kyalo.
The Appellant/Respondent states that filing at the subordinate court arose from a procedural mistake regarding forum and was not an abuse of the court process. That since the appeal has been filed the court can use its discretion and grant the leave.
This court has considered the application and the submissions therein. I have perused the court record and find that on the 29th May 2025 the Advocates for the parties by consent transferred the matter to this court and hence the issue of it being filed in the High Court which has no jurisdiction is moot.
The issue before me for determination is whether the appeal was filed in contravention od section 79G of the Civil Procedure Act. Section 79G of the Civil Procedure Act is the operative part in answering the question whether the prayer to enlarge time to file the appeal is merited. Section 79G of the Civil Procedure Act provides that:
“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.”
From the provision above, it is noteworthy that the phrase used is “an appeal may be admitted out of time”. This therefore means that an appeal may indeed be admitted out of time. In Mugo & Others vs Wanjiru & Another (1970) EA 482 the court stated as follows;
“Clearly, as a general rule the filing and service of the notice of appeal ought to be regularised before or at least at the same time as an application is made to extend the time for filing the record and the fact that this has not been done might be a reason for refusing the application or only allowing one on terms as to costs. But it does not mean that such an application must be refused.”
The Court of Appeal in the above case guided that whenever an application for
extension of time is before a court, the court ought to take into account several factors as observed by Odek JJA in Edith Gichungu Koine vs Stephen Njagi Thoithi (2014) eKLR thus;
“Nevertheless, it ought to be guided by consideration of factors stated in many previous decision of this court including, but no limited to, the period of delay, the reasons for the delay, the degree of prejudice to Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.”
The Court of Appeal further guided that there is also a duty imposed on courts to ensure that the factors considered are consonant with the overriding objective of civil proceedings litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the court. In Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others (2013) eKLR the court held as follows;
“(1) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
(2) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court.
(3) Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis.
(4) Whether there is reasonable reason for the delay. The delay should be explained to the satisfaction of the court.
(5) Whether there will be any prejudice suffered by the respondent of the extension is granted.
(6) Whether the application has been brought without undue delay; and
(7) Whether uncertain cases, like election petition, public interests should be a consideration for extending time.”
I have given due consideration of the record in light of the pleadings, submissions, and principles that guide the court. The judgement in the lower court was delivered on the 9th November 2023 the appeal was filed on the 2nd May 2025 albeit in the wrong court. I find that Section 79G is mandatory that 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. If this is not done, then the Appellant must obtain leave of the court. It is not disputed in the instant case that nor leave was sought neither was it obtained. The Appellant cannot file an appeal out of time and then seek leave retrospectively when the same is pointed out by the Respondent. I find this appeal offends the provisions of Section 79G and I strike it out with costs.
It is so ordered.
1. That the application be certified as urgent and service thereof be dispensed with in the first instance.
2. That there be an order staying all the proceedings in Machakos MC.ECL NO 67 OF 2020 pending the hearing and determination of this application inter-partes.
3. That there be an order dismissing the appeal for want of jurisdiction since the same falls under the jurisdiction of the Environment and Land Court, rather than the High Court and the appeal offends the provisions of section 13 of the Environment & Land Court Act.
4. That there be an order dismissing the appeal for having offended the provisions of section 79G of The Civil Procedure Act, having been filed outside the thirty (30) days limitation and without leave of the court.
The application is based on the following grounds that the appeal arises from the judgment of the Machakos Magistrate Court in CM.ELC CASE NO. 67 OF 2020, and with the establishment of the Environment and Land Court, the proper appeal should have been filed before the Environment and Land Court, rather than in High Court. That, as a consequence of the foregoing, the High Court lacks jurisdiction to hear this matter and the same should be dismissed with costs. That the above notwithstanding, the impugned judgment of the Magistrates Court was delivered on the 9th November 2023, while the memorandum of appeal was filed on 2nd May 2025, which is eighteen (18) months after the judgment. That it is clear that the memorandum of appeal offends the provisions of section 79G of the Civil Procedure Act, having been filed outside the statutory 30 days and without leave of the court.
That the Appellant initially filed an application for review before the trial court but the same was dismissed on 2nd May 2025. Consequently, the Appellant should have appealed the order dismissing the application but has now been misled to appeal the judgment, believing that the application cured the time limitations. That the proceedings of the trial court have not come to a halt after the application was dismissed, the Appellant herein proceeded to file another application for stay of execution pending the hearing of the appeal. That stay of execution orders cannot exist where the appeal is improperly before the court. That it is clear that the Appellant is manipulating the court processes to take the respond in rounds and deny the right to his land. The application is further supported by the annexed affidavit of Daniel Kiendi Kyalo.
The Appellant/Respondent states that filing at the subordinate court arose from a procedural mistake regarding forum and was not an abuse of the court process. That since the appeal has been filed the court can use its discretion and grant the leave.
This court has considered the application and the submissions therein. I have perused the court record and find that on the 29th May 2025 the Advocates for the parties by consent transferred the matter to this court and hence the issue of it being filed in the High Court which has no jurisdiction is moot.
The issue before me for determination is whether the appeal was filed in contravention od section 79G of the Civil Procedure Act. Section 79G of the Civil Procedure Act is the operative part in answering the question whether the prayer to enlarge time to file the appeal is merited. Section 79G of the Civil Procedure Act provides that:
“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.”
From the provision above, it is noteworthy that the phrase used is “an appeal may be admitted out of time”. This therefore means that an appeal may indeed be admitted out of time. In Mugo & Others vs Wanjiru & Another (1970) EA 482 the court stated as follows;
“Clearly, as a general rule the filing and service of the notice of appeal ought to be regularised before or at least at the same time as an application is made to extend the time for filing the record and the fact that this has not been done might be a reason for refusing the application or only allowing one on terms as to costs. But it does not mean that such an application must be refused.”
The Court of Appeal in the above case guided that whenever an application for
extension of time is before a court, the court ought to take into account several factors as observed by Odek JJA in Edith Gichungu Koine vs Stephen Njagi Thoithi (2014) eKLR thus;
“Nevertheless, it ought to be guided by consideration of factors stated in many previous decision of this court including, but no limited to, the period of delay, the reasons for the delay, the degree of prejudice to Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.”
The Court of Appeal further guided that there is also a duty imposed on courts to ensure that the factors considered are consonant with the overriding objective of civil proceedings litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the court. In Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others (2013) eKLR the court held as follows;
“(1) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
(2) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court.
(3) Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis.
(4) Whether there is reasonable reason for the delay. The delay should be explained to the satisfaction of the court.
(5) Whether there will be any prejudice suffered by the respondent of the extension is granted.
(6) Whether the application has been brought without undue delay; and
(7) Whether uncertain cases, like election petition, public interests should be a consideration for extending time.”
I have given due consideration of the record in light of the pleadings, submissions, and principles that guide the court. The judgement in the lower court was delivered on the 9th November 2023 the appeal was filed on the 2nd May 2025 albeit in the wrong court. I find that Section 79G is mandatory that 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. If this is not done, then the Appellant must obtain leave of the court. It is not disputed in the instant case that nor leave was sought neither was it obtained. The Appellant cannot file an appeal out of time and then seek leave retrospectively when the same is pointed out by the Respondent. I find this appeal offends the provisions of Section 79G and I strike it out with costs.
It is so ordered.