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ELCAllowedNot stated in judgment (arising from Kajiado CMELC No. E009 of 2020)

Atunga v Rasungu & 2 others (Environment & Land Miscellaneous Case E016 of 2023) [2025] KEELC 3003 (KLR)

Environment and Land Court of Kenya
25 March 2025
1,724 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kajiado court gave a landowner extra time to appeal because delays in getting certified court documents were not her fault.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kajiado (M.D. Mwangi, Judge) delivered on 25th March 2025 on a Notice of Motion dated 3rd October 2023 in which the Applicant, Christine Mochache Atunga, sought leave to file an appeal out of the statutory time against the judgment and decree of Hon. E.M Kagoni (Chief Magistrate) of 10th August 2023 in Kajiado CMELC No. E009 of 2020, which had dismissed her suit with costs. The Applicant explained that she requested certified copies of the judgment, decree and proceedings by letter dated 10th August 2023 but only received an uncertified copy of the judgment on 14th September 2023, after the statutory 30-day period expired on 11th September 2023. The 1st Respondent opposed the application through grounds of opposition and submissions, arguing there were no valid reasons for the delay since proceedings are not a prerequisite to filing an appeal. Framing a single issue, the court applied Section 79G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act, together with the Supreme Court's principles in Salat v IEBC and the Court of Appeal's factors in Paul Musili Wambua. Finding the approximately 38-day delay reasonably explained and the Respondent not prejudiced, and guided by Article 159(2)(d) of the Constitution, the court allowed the application and directed the Applicant to file and serve the memorandum of appeal within 14 days. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant has established sufficient basis for the grant of the orders sought, namely leave to file an appeal out of the statutory time

Key legal issues

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Whether the Applicant established good and sufficient cause to warrant extension of time to file an appeal out of the statutory period under Section 79G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act

Holding

The Applicant was deserving of the court's discretion to extend time; the application was allowed with directions to file and serve the memorandum of appeal within 14 days.

Reasoning

The court applied the Supreme Court's principles in Salat v IEBC and the Court of Appeal's factors in Paul Musili Wambua: length of delay, reason for delay, chances of success and prejudice to the respondent. The delay of approximately 38 days was attributable to delay in obtaining a certified copy of the judgment, and the Respondent would suffer no prejudice since the trial suit had been dismissed with costs. Article 159(2)(d) favoured hearing the appeal on its merits rather than penalising procedural delay.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy available to a deserving party at the discretion of the court, exercised on a case-by-case basis upon reasons.
  • In an application for leave to appeal out of time, the court is not required to determine the merits or likely success of the intended appeal.
  • Courts must administer justice without undue regard to procedural technicalities under Article 159(2)(d) of the Constitution.

Court orders

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  1. 1.The Notice of Motion dated 3rd October, 2023 is hereby allowed
  2. 2.The Applicant is directed to file and serve the memorandum of appeal within 14 days of this ruling

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 79G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act (Cap. 8D); Article 159(2)(d) of the Constitution

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Considering the application herein in its totality, I am persuaded that the Applicant is deserving of the discretion of this court to extend time. Accordingly, the Notice of Motion dated 3rd October, 2023 is hereby allowed. The Applicant is directed to file and serve the memorandum of appeal within 14 days of this ruling.
p. 4Final orders - leave to appeal out of time granted
At this juncture, it is not the business of this court to decide whether the appeal will successful or not.
p. 4Scope of inquiry on extension of time
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.
p. 2Statutory discretion to admit appeal out of time

Issues in the judgment

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minor

The judgment does not state the case number of the present application before the Environment and Land Court, nor the neutral citation.

minor

The parties to the application include a 2nd and 3rd Respondent per the underlying suit title ('Charles Nyatundo Rasugu & 2 Others') but only the 1st Respondent's response is recorded, and the other Respondents are not otherwise addressed.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Atunga v Rasungu & 2 others (Environment & Land Miscellaneous Case E016 of 2023) [2025] KEELC 3003 (KLR)", Case Analysis (2025). Not stated in judgment (arising from Kajiado CMELC No. E009 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3003/eng@2025-03-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.