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ELCDismissedApplication dated 14th June 2017 (arising from Wanguru Principal Magistrate's Court Civil Case No. 138 of 2014)· [2017] KEELC 1219 (KLR)

Lucy Njeri Njenga v Gakuo Kimu & 3 others [2017] KEELC 1219 (KLR)

High Court of Kenya
19 October 2017
BOB.N. Olao
1,440 words in judgment
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The bottom line

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A Kenyan court refused to extend a seven-month delay in filing an appeal, so the judgment against the applicant stands and can be enforced.

What this practically means

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Executive summary

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The Applicant, who was the 2nd defendant in Wanguru Principal Magistrate's Court Civil Case No. 138 of 2014, sought leave under Sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act and Order 42 Rule 6(1) of the Civil Procedure Rules to appeal out of time against a judgment and decree delivered and drawn in July and November 2016, and sought that the leave act as stay of execution. She explained that she was unaware of the judgment because her advocate failed to inform her, and urged that the advocate's mistake should not be visited upon her. The respondents were served but filed no reply, and the court considered the application on its merits. Applying Section 79G and the extension-of-time principles laid down by the Supreme Court in Nicholas Kiptoo arap Korir Salat v IEBC, the court weighed the length and explanation of the delay, arguability of the intended appeal, prejudice, and the interests of justice. Although acknowledging that courts ordinarily do not punish parties for their advocates' mistakes, invoking Madan JA in Murai v Wainaina, the court found that the decree of 22nd November 2016 was issued in the presence of all the defendants, so the Applicant could not feign ignorance of the ruling. The application was filed some seven months later with no explanation for that inordinate delay. Holding that a party seeking discretionary relief must come to court with clean hands, the court found no sufficient cause and rejected the prayer to appeal out of time. The stay of execution prayer, being dependent on the grant of leave, was not considered. The Notice of Motion dated 14th June 2017 was dismissed.

Key legal issues

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01

Whether there was good and sufficient cause for not filing the appeal within 30 days under Section 79G of the Civil Procedure Act

Holding

No sufficient cause was shown; the delay was inordinate and unexplained

Reasoning

The trial court's decree was issued on 22nd November 2016 in the presence of all the defendants, including the Applicant, yet the application was filed on 14th June 2017, some seven months later, with no explanation. Blaming the former advocate was unavailing because the Applicant could not feign ignorance of the ruling that led to the decree being executed against her.

p. 3
02

The principles governing extension of time to appeal

Holding

The court adopted the Salat principles from the Supreme Court, including that extension of time is discretionary and equitable, and must be considered case by case

Reasoning

The court listed the factors: length of delay, explanation, arguability of the intended appeal, prejudice to the respondent, public importance and interests of justice, and applied the Supreme Court's guidelines in Nicholas Kiptoo arap Korir Salat v IEBC. It emphasised that there must be sufficient cause to explain the delay and that the discretion must be exercised judicially on the merits of each case.

p. 2

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the Court's discretion, and the applicant bears the burden of laying a basis
  • A party seeking a discretionary order must come to court with clean hands
  • Ordinarily a court will not visit the mistakes of an advocate on a party

Court orders

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  1. 1.The Applicant's Notice of Motion dated 14th June 2017 is dismissed
  2. 2.The prayer to file the appeal out of time is rejected
  3. 3.The prayer for stay of execution is not considered as it cannot stand on its own

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSections 1A, 1B, 3A and 95
  • Civil Procedure RulesOrder 42 Rule 6(1)

Cases cited (2)

  • Nicholas Kiptoo arap Korir Salat v I.E.B.C & Others
    2014 eKLR
  • Murai v Wainaina No. 4
    1982 KLR 38
On appeal from
Wanguru Principal Magistrate's Court
Civil Case No. 138 of 2014
Jurisdiction invoked
Sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act and Order 42 Rule 6(1) 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, "Lucy Njeri Njenga v Gakuo Kimu & 3 others [2017] KEELC 1219 (KLR)", Case Analysis (2017). Application dated 14th June 2017 (arising from Wanguru Principal Magistrate's Court Civil Case No. 138 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1219/eng@2017-10-19

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