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Court of AppealDismissedCivil Application E410 of 2021· [2022] KECA 1099 (KLR)

Matewa Agencies Limited & 2 others v Muindi

Court of Appeal
7 October 2022
GNG. W. Ngenye-Macharia
1,615 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to excuse a two-year delay in appealing, ruling that litigants must follow up their own cases and cannot blame their advocates.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi on a Notice of Motion dated 27th July 2021 by Matewa Agencies Limited and two others, seeking leave to appeal out of time against a judgment of Gacheru, J of the Environment and Land Court at Thika in E.L.C Case No. 729 of 2017, that the leave operate as a stay of judgment and execution, and that new advocates come on record after judgment. The applicants blamed their former advocates for failing to inform them of the judgment, saying they only learnt of it on 23rd July 2021 when auctioneers contacted them about impending execution. The respondent opposed, asserting inordinate and unexplained delay, noting the applicants' advocate had been served with a bill of costs and notice of taxation in 2019 and 2021 without response. Applying the Supreme Court's Salat principles, Ngenye-Macharia, JA found the roughly two-year delay inordinate and the explanation inexcusable, holding that litigation belongs to the party and the applicants had shown no steps to follow up their case. The alleged imminent auction was unsupported by any proclamation notice or schedule of sale and its date had long passed, so the stay prayer was overtaken by events. The Motion was dismissed with costs to the respondent, with a pointer that any grievance against the former advocate lies through other rightful channels.

Key legal issues

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01

Whether the delay of about two years in seeking leave to appeal out of time was adequately explained

Holding

The delay was inordinate and inexcusable; the applicants showed no steps taken to ascertain the suit's position, and discretion could not be exercised in their favour.

Reasoning

The judgment was delivered in June 2019 but the application was dated 27 July 2021, a two-year delay. The applicants blamed their former advocate's failure to inform them, but did not show they visited the court registry or contacted counsel. The court held them indolent and not vigilant, and found the explanation unsatisfactory, so the extension-of-time prayer failed.

p. 3
02

Whether stay of execution should be granted given the alleged imminent auction

Holding

The stay prayer was overtaken by events and unsupported by evidence of the alleged auction.

Reasoning

The applicants claimed their property would be auctioned on 28th July 2021, but annexed no proclamation notice or schedule of sale. That date had long passed by the time of the ruling, so the court found no live stay or injunction to grant and treated the prayer as overtaken by events.

p. 3

Legal principles established

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  • Extension of time is a discretionary, equitable remedy exercised judiciously on a case-to-case basis under the Salat principles
  • Litigation belongs to the party, not counsel; a party must follow up on their own case and cannot rely solely on an advocate's failure to communicate

Court orders

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  1. 1.The applicants' Motion dated 27th July, 2021 is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 75
  • Civil Procedure ActSection 78
  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 rule 6

Cases cited (2)

  • Nicholas Kiptoo Korir Arap Salat v Independent Electoral & Boundaries Commission & 7 others
    [2014] eKLR

    Principles governing extension of time for filing an appeal.

  • Liberato Kivanga Manga v Prime Bank Limited
    [2021] eKLR

    Cited by applicants in support of extension of time and satisfaction of prerequisites.

On appeal from
Environment and Land Court of Kenya at Thika
E.L.C Case No. 729 of 2017
Jurisdiction invoked
Sections 3A, 75, 78, 79G of the Civil Procedure Act and Order 42 rule 6 of the Civil Procedure Rules

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, "Matewa Agencies Limited & 2 others v Muindi", Case Analysis (2022). Civil Application E410 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1099/eng@2022-10-07

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