Chege & another (Suing as the Personal Representative of Paul Ngigi Mungai) v Kimani & 2 others (Suing as Representatives of Hallelluyah Gospel Church Karuri) (Civil Application E401 of 2024) [2025] KECA 1327 (KLR)
The bottom line
#Kenya's Court of Appeal excused a lawyer's filing mistake and let the appeal proceed, but refused to grant a stay because a single Judge cannot decide stay applications.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave should be granted to file the appeal out of time under Rule 4
- 2.Whether a stay of execution of the ELC judgment should be granted
- 3.Whether leave should be granted for M N Ndiritu & Co Advocates to come on record after judgment
Key legal issues
#Whether the delay of about a month in lodging the notice of appeal, caused by counsel's failure to pay for it, warranted extension of time
Extension granted: the delay was not inordinate, the applicants followed up diligently, the application was prompt, and the respondent showed no prejudice.
The notice was presented for e-filing within Rule 77(2) timelines but not paid for until 19th July 2024. Applying Fakir Mohamed principles and the Tana and Athi Rivers guidance on mistakes of counsel, the court found the one-month delay modest, the applicants' conduct diligent, the Rule 4 application prompt, and no prejudice established by the respondent, and exercised its discretion in favour of hearing the appeal on the merits.
Whether the single Judge could grant a stay of execution
No - excluded from single Judge jurisdiction by Rule 55; that prayer was not entertained.
Rule 55 restricts the matters a single Judge may determine. Stay of execution falls outside that scope and must be placed before the full Court, so the prayer was left unaddressed.
Whether M N Ndiritu & Co Advocates could come on record after judgment
Leave granted; unopposed and Rule 23 complied with.
The change of advocates was not opposed, a notice of change had been filed, and Rule 23 requirements were met, so leave was granted.
Legal principles established
#- A single Judge of the Court of Appeal lacks jurisdiction to hear an application for stay of execution, which is not a Rule 55 single Judge matter.
- Mistake of counsel may be excused under Rule 4 but the discretion is not automatic; the nature and quality of the error, its implications and the applicant's conduct must be considered.
- The Rule 4 discretion is guided by the Fakir Mohamed factors: period of delay, reason for delay, chances of appeal succeeding, prejudice to respondent and related considerations.
Court orders
#- 1.The firm of M N Ndiritu & Co Advocates granted leave to come on record after judgment, Rule 23 compliance noted
- 2.Stay of execution application not determined - not a single Judge matter under Rule 55
- 3.The notice of appeal already filed is deemed as duly filed and served
- 4.Applicants to file and serve the record of appeal within sixty (60) days
- 5.Costs of the application shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court, Thika
- ELC No. 798 of 2017 (OS) consolidated with ELC No. 40 of 2018 (OS)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time) and Rule 55 (single Judge jurisdiction)
Relief refused
#Stay of execution of the judgment of 13th June 2024
An application for stay of execution is not a single Judge matter under Rule 55
Costs
Costs of this application shall be in the appeal.
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.
The application of 3rd September, 2024 is allowed in the following terms. The notice of appeal already filed is deemed as duly filed and served. The applicants shall within sixty (60) days hereof file and serve the record of appeal.
while a mistake of counsel may be excused, the discretion to do so is not automatic.
An application for stay of execution is not a single Judge matter.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chege & another (Suing as the Personal Representative of Paul Ngigi Mungai) v Kimani & 2 others (Suing as Representatives of Hallelluyah Gospel Church Karuri) (Civil Application E401 of 2024) [2025] KECA 1327 (KLR)", Case Analysis (2025). Rule 4 Application - Amended Notice of Motion dated 3rd September 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1327/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.