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Court of AppealPartially AllowedCivil Appeal (Application) E323 of 2022· [2022] KECA 1304 (KLR)

Estate of Raphael Ngugi Githuku v Samuel Mwehia Gitau & 11 others

Court of Appeal
2 December 2022
1,738 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave an estate more time to file its appeal, but refused to stop enforcement of the land judgment because a single judge cannot grant a stay.

What this practically means

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Executive summary

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This is a ruling by G.W. Ngenye-Macharia, JA, sitting as a single judge of the Court of Appeal at Nairobi, on an unopposed notice of motion dated September 5, 2022 by the Estate of Raphael Ngugi Githuku seeking extension of time to file a Memorandum of Appeal and Record of Appeal out of time, and stay of execution, against the judgment of Gacheru, J delivered on February 10, 2022 in ELC No. 407 of 2017. That judgment declared the 1st respondent the bona fide owner of Ruiru Kiu Block 2/3765, directed cancellation of titles Ruiru Kiu Block 2/9759–9770, and ordered indemnities against the applicant. The applicant explained the delay by the late preparation of certified proceedings, evidenced by a Certificate of Delay covering 133 days. The court applied the Leo Sila Mutiso principles and rule 4 of the Court of Appeal Rules, 2022. It held that because the applicant did not prove service of the letter bespeaking proceedings on the respondents, the 60-day period ran uninterrupted and lapsed on April 18, 2022, with a further two-month unexplained delay; nevertheless, the delay was not inordinate, the appeal was arguable on points of law and fact, the suit property was valuable, and the respondents showed no undue prejudice. Extension of time was granted with fixed timelines. The request for stay of execution was refused because such relief falls under rule 5(2)(b) and is outside a single judge's powers. Costs of the application were made costs in the appeal.

Key legal issues

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01

Whether the delay in filing the Memorandum and Record of Appeal should be excused under rule 4

Holding

The delay was not inordinate; the appeal was arguable and no undue prejudice to the respondents was shown, so extension of time was granted

Reasoning

Applying the Leo Sila Mutiso principles, the court considered the length and reason for the delay, the arguability of the appeal and prejudice to respondents. The delay was partly attributable to preparation of proceedings, though the applicant failed to prove service of the bespeaking letter, and there was a two-month unexplained delay. The court nonetheless found the delay not inordinate, the appeal arguable on points of law and fact, the property valuable, and no prejudice demonstrated by respondents.

p. 4
02

Whether the single judge could grant stay of execution

Holding

No; stay of execution falls under rule 5(2)(b) and is outside the ambit of a single judge

Reasoning

The applicant sought stay of execution without stating the legal basis. The court held that such relief falls under rule 5(2)(b) of the Court of Appeal Rules, which is reserved to the full Court, and declined to entertain the request.

p. 4

Legal principles established

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  • A single judge of the Court of Appeal cannot entertain an application for stay of execution, which falls under rule 5(2)(b) and must be sought separately
  • Where an appellant does not demonstrate service of the letter bespeaking proceedings, the 60-day period for lodging the record of appeal runs uninterrupted from the filing of the notice of appeal

Court orders

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  1. 1.Time is extended for filing the Memorandum of Appeal and the Record of Appeal
  2. 2.The Memorandum of Appeal shall be filed and served within 7 days of the ruling and the Record of Appeal within 60 days of the ruling
  3. 3.The costs of the application shall be in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 118

Cases cited (1)

  • Leo Sila Mutiso v Helen Wangari Mwangi
    [1999] 2 EA p231

    Principles for exercise of discretion under rule 4: length and reason of delay, chances of success, prejudice to respondent

On appeal from
Environment and Land Court
E.L.C No. 407 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022

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, "Estate of Raphael Ngugi Githuku v Samuel Mwehia Gitau & 11 others", Case Analysis (2022). Civil Appeal (Application) E323 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1304/eng@2022-12-02

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