Kithyo Kata & 2 others v Martin Mukosi Ngaa & another [2020] eKLR Case Summary

Court
Environment and Land Court at Machakos
Category
Civil
Judge(s)
O.A. Angote
Judgment Date
October 09, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
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Case Brief: Kithyo Kata & 2 others v Martin Mukosi Ngaa & another [2020] eKLR

1. Case Information:
- Name of the Case: Kithyo Kata & Others v. Martin Mukosi Ngaa & Gladys Muli
- Case Number: ELC. Appeal No. 43 of 2019
- Court: Environment and Land Court at Machakos
- Date Delivered: October 9, 2020
- Category of Law: Civil
- Judge(s): O.A. Angote
- Country: Kenya

2. Questions Presented:
The central legal issues presented before the court include:
1. Whether the Applicants should be granted an extension of time to file their Memorandum of Appeal out of time.
2. Whether the Memorandum of Appeal dated September 6, 2019, should be deemed properly filed and served on the Respondents.

3. Facts of the Case:
The Applicants, Kithyo Kata, John M. Mbijiwe, and Bealine Kenya, were dissatisfied with a judgment delivered on August 8, 2019, in favor of the Respondents, Martin Mukosi Ngaa and Gladys Muli, in Machakos CMCC ELC No. 81 of 2018. Following the judgment, the Applicants requested copies of the court proceedings, which were only provided on September 3, 2019. The Applicants contended that the delay in filing their appeal within the thirty-day period prescribed by Section 79G of the Civil Procedure Act was due to circumstances beyond their control, including time spent pursuing the court's proceedings and misadvice from court officials regarding filing protocols.

4. Procedural History:
The Applicants filed an Application on September 11, 2019, seeking to enlarge the time for filing their Memorandum of Appeal. The 2nd Respondent opposed this Application, arguing that the delay was inordinate and that the Applicants had not demonstrated any prejudice they would suffer if the decree was executed. The matter was canvassed through written submissions, where both parties presented their arguments regarding the delay and the merits of the intended appeal.

5. Analysis:
- Rules: The court considered Section 79G of the Civil Procedure Act, which stipulates that an appeal must be filed within thirty days from the date of the decree, allowing for extensions if good and sufficient cause is shown. Additionally, Order 50 Rule 6 of the Civil Procedure Rules permits the court to enlarge time fixed by the Rules.

- Case Law: The court referenced the case of Pothiwalla vs. Kidogo Basi Housing Co-operative Society Limited & 31 Others (2005) KLR, which outlines the criteria for granting extensions of time, including the need for a sufficiently explained delay and the absence of prejudice to the Respondent. The principles from Itute Ingu & Anor vs. Isumael Mwakavi Mwendwa (1994) eKLR and Leo Sila Mutiso vs. Rose Hellen Wangare Mwangi Civil Application No. NAI 255 of 1997 (ur) were also discussed, emphasizing the discretionary nature of the court's decision on extensions.

- Application: The court found that the Applicants' delay of two days in filing the Memorandum of Appeal was not inordinate and was excusable given the circumstances. The Applicants had filed their Memorandum of Appeal promptly after receiving the proceedings, and the Respondents failed to demonstrate any prejudice that would result from allowing the extension.

6. Conclusion:
The court ruled in favor of the Applicants, allowing their Application for an extension of time to file the Memorandum of Appeal. The Memorandum of Appeal dated September 6, 2019, was deemed properly filed and served. This ruling underscores the court's discretion to grant extensions in the interest of justice, especially when the delay is minimal and adequately explained.

7. Dissent:
There were no dissenting opinions noted in this case.

8. Summary:
The Environment and Land Court at Machakos granted the Applicants' request for an extension of time to file their Memorandum of Appeal, deeming it properly filed despite the delay. The ruling highlights the court's commitment to ensuring that parties have the opportunity to appeal judgments while balancing the need for judicial efficiency and the rights of the parties involved. The decision serves as a precedent for similar cases regarding the extension of time for filing appeals in civil matters.

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