James Ngari Makambi v Pauline Muthoni Ngari [2019] KEELC 620 (KLR)
The bottom line
#The High Court in Embu allowed a party an extra chance to appeal after missing a deadline, because the delay was explained, the appeal looked worthwhile, and no one would be unfairly harmed.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to appeal out of time
The application was allowed: the delay of about 3½ months was moderate and adequately explained, the intended appeal raised arguable points, and no prejudice to the Respondent was demonstrated.
The court applied the established guidelines from Mwangi v Kenya Airways Ltd and Leo Sila Mutiso v Rose Hellen Wangari Mwangi, weighing the length of delay, its explanation, the arguability of the intended appeal, and prejudice. The Respondent did not specifically refute the Applicant's explanation, and the grievances about a statute-barred decree and the decree holder's lack of locus standi were held not fanciful or frivolous. The Respondent would retain full opportunity to oppose the appeal.
Prejudice to the Respondent if extension is granted
The Respondent failed to demonstrate any prejudice that she would suffer if the extension of time was granted.
The court noted that the Respondent had not shown specific prejudice. She would still be able to oppose the intended appeal and argue that the Applicant was an illegal occupant of the suit property and had failed to challenge the original decree for 28 years. Accordingly, this factor did not weigh against the extension.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary, and the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the Respondent.
Court orders
#- 1.Leave granted to the Applicant to file the intended appeal out of time against the ruling/order of the Hon. M.N. Gicheru (CM) dated 30th April 2018 in Embu CMCC No. 81 of 1989
- 2.The Applicant to file and serve his memorandum of appeal upon the Respondent within 14 days, in default of which the leave granted shall lapse
- 3.The Applicant to pay the Respondent's costs of the Application in the sum of Ksh.15,000/- within 30 days
- On appeal from
- Chief Magistrate's Court, Embu
- Embu CMCC No. 81 of 1989
- Jurisdiction invoked
- Sections 3A, 79G and 95 of the Civil Procedure Act (Cap. 21) and Order 50 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Ngari Makambi v Pauline Muthoni Ngari [2019] KEELC 620 (KLR)", Case Analysis (2019). Embu CMCC No. 81 of 1989 (Miscellaneous Application — notice of motion dated 16th August 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/620/eng@2019-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.