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ELCDismissedAppeal from Kiambu CMCC No. 5 of 1994 (Notice of Motion dated 28th March 2017)· [2017] KEELC 2153 (KLR)

Mathu Nganga v Jane Wacuka Nganga [2017] KEELC 2153 (KLR)

High Court of Kenya
31 July 2017
1,458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court threw out an appeal filed over 20 years late, confirming that no court paperwork can save an appeal that misses the 30-day deadline.

What this practically means

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Executive summary

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This was a ruling by L. Gacheru J at the High Court, Thika, on the Appellant's Notice of Motion dated 28th March 2017 in an appeal from the Chief Magistrate's Court at Kiambu (CMCC No. 5 of 1994). The Appellant, Mathu Nganga, sought leave for his paternal uncle Francis Nganga Mathu to substitute him (allegedly due to failing hearing), a temporary injunction restraining the Respondent from dealings on LR. No. Githunguri/Gathangari 3718, restraint of the District Surveyor and Land Registrar, Kiambu, and costs, invoking Order 10 Rule 11 and Sections 1A, 1B and 3A of the Civil Procedure Act. The Respondent opposed, arguing no medical proof of deafness, no Power of Attorney for the proposed substitute, and that the appeal was filed out of time without extension. The court found that the judgment appealed against was delivered on 22nd November 1995, over 20 years earlier, and no appeal was lodged within 30 days nor any application made under the proviso to Section 79G to admit the appeal out of time. The Memorandum and Petition of Appeal were therefore fatally defective and incompetent, no interlocutory application could attach to them, and Order 10 Rule 11 was inapplicable because the impugned judgment followed an inter partes hearing. The substitution prayer failed for want of medical evidence and a Power of Attorney under Order 9 Rule 2, and invoking the overriding objective could not cure a 20-year delay, which the court held was an abuse of process. The application was disallowed wholly with costs to the Respondent, and the appeal was rejected summarily under Section 78B of the Civil Procedure Act.

Key legal issues

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01

Competency of the appeal filed out of time

Holding

The appeal was filed more than 20 years after the judgment of 22nd November 1995, without any application for extension of time or admission out of time under the proviso to Section 79G; it is fatally defective and incompetent

Reasoning

Section 79G requires appeals from subordinate courts to be filed within 30 days of the decree or order appealed against. The proviso permits admission out of time only upon good and sufficient cause shown by the Appellant. The Appellant never made such an application, so the Memorandum and Petition of Appeal are incompetent.

p. 2
02

Whether interlocutory relief can attach to an incompetent appeal

Holding

It cannot; the application for injunction and restraint must fail with the incompetent appeal

Reasoning

Since the Memorandum and Petition of Appeal were fatally defective, no interlocutory application could attach to them. The orders sought under the Notice of Motion, including temporary injunction and restraint of the District Surveyor and Land Registrar, therefore fell away.

p. 2
03

Appropriateness of Order 10 Rule 11 relief

Holding

Order 10 Rule 11 applies to judgments entered on default of appearance or defence; the judgment being challenged was after an inter partes hearing, so the remedy was appeal, not setting aside

Reasoning

Order 10 deals with consequences of non-appearance and default of defence. The judgment of 22nd November 1995 was entered after an inter partes hearing, so the Appellant's remedy was an appeal within time, which he neither filed nor sought leave to file out of time. The application under Order 10 Rule 11 was therefore incompetent.

p. 3
04

Substitution of Francis Nganga Mathu as the Appellant

Holding

Refused; no medical proof of impaired hearing and no Power of Attorney in favour of Francis Nganga Mathu

Reasoning

Order 9 Rule 2 permits a recognized agent to appear only subject to court approval where he holds a Power of Attorney authorizing the appearance. The medical reports attached to submissions did not show impaired hearing, and no Power of Attorney was produced, so the prayer was contrary to the rules of procedure.

p. 3

Legal principles established

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  • An appeal filed outside the 30-day period under Section 79G without an application for admission out of time for good and sufficient cause is fatally defective and incompetent
  • No interlocutory application may attach to an incompetent appeal
  • A recognized agent may only appear for a party subject to court approval where he holds a Power of Attorney
  • Filing an appeal after 20 years is contrary to the overriding objective of expeditious disposal and constitutes an abuse of court process

Court orders

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  1. 1.The Notice of Motion dated 28th March 2017 is disallowed wholly with costs to the Respondent
  2. 2.The Memorandum of Appeal and Petition of Appeal, filed without leave to file out of time, are incompetent and rejected summarily under Section 78B of the Civil Procedure Act
On appeal from
Chief Magistrate's Court, Kiambu (Subordinate Court at Kiambu)
CMCC No. 5 of 1994
Jurisdiction invoked
Sections 1A, 1B, 3A, 78B and 79G of the Civil Procedure Act, Cap 21; Order 10 Rule 11 and Order 9 Rule 2 of the Civil Procedure Rules 2010

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, "Mathu Nganga v Jane Wacuka Nganga [2017] KEELC 2153 (KLR)", Case Analysis (2017). Appeal from Kiambu CMCC No. 5 of 1994 (Notice of Motion dated 28th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2153/eng@2017-07-31

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