Njagi v Gakuna & 3 others
The bottom line
#The Court of Appeal dismissed a landowner's attempt to revive her appeal because she broke the deadlines in her own consent order, leaving no valid notice of appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted extension of time to file and serve the record of appeal
- 2.Whether there exists a valid notice of appeal upon which a record of appeal can be filed, given the alleged default on the consent order of October 22, 2019
Key legal issues
#Effect of default on a consent order governing the filing of a notice of appeal
The applicant's unrebuted default on the terms of the consent order of October 22, 2019 meant the notice of appeal was non-existent and the record of appeal incompetent; extension of time could not cure this.
The court found it undisputed that the applicant had obtained a consent order on October 22, 2019 allowing her to file a notice of appeal within 14 days, with a term that default would set the consent aside. The respondent contended the applicant defaulted; the applicant did not rebut that contention. The court therefore held there was no valid notice of appeal supporting a record of appeal, and dismissed the motion.
Legal principles established
#- A record of appeal cannot be filed and served where there is no valid notice of appeal, including where a consent order providing for notice of appeal has stood set aside upon the applicant's default.
Court orders
#- 1.The applicant's motion dated October 27, 2021 is dismissed with costs to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment & Land Court at Nakuru
- Nakuru ELC Petition No. 4 of 2018
- Jurisdiction invoked
- Rules 4 and 82 of the Court of Appeal Rules 2010 and the inherent jurisdiction of the court
Relief refused
#Extension of time to file the record of appeal
The applicant defaulted on terms of the consent order of October 22, 2019, so there is no valid notice of appeal
Deeming the record of appeal filed on September 18, 2020 as properly on record
No valid notice of appeal exists to support the record
Costs
Dismissed with costs to the 1st respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In view of the above and the applicant having defaulted on some of the terms of the consent order dated October 22, 2019, there is no valid notice of appeal upon which the applicant can subsequently file and serve a record of appeal.
Accordingly, the applicant’s motion dated October 27, 2021 is without merit and the same is hereby dismissed with costs to the 1st respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njagi v Gakuna & 3 others", Case Analysis (2022). Civil Application E016 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1191/eng@2022-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.