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ELCDismissedNot stated in judgment (application dated 8 October 2018)· [2019] KEELC 4436 (KLR)

Margaret Wangui Wambugu: Legal representatives of the estate of hannah wanjiru wangai (Deceased) v Simon Kagiri [2019] KEELC 4436 (KLR)

Environment and Land Court
28 February 2019
MSMunyao Sila
1,367 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to forgive a two-year delay in filing an appeal, warning that blaming your lawyer without proof rarely works.

What this practically means

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Executive summary

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The defendant/applicant sought, by an application dated 8 October 2018, an extension of time to lodge a Notice of Appeal against a judgment of the Environment and Land Court at Nakuru delivered on 18 October 2016, in which the court had cancelled titles to land parcels Nyandarua/Sabugo/1080 and 3271 that the applicant had allegedly fraudulently obtained from his mother, the original plaintiff, and directed that proprietorship revert to her. The application invoked Section 7 of the Appellate Jurisdiction Act, Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules. The applicant explained the delay by alleging that three successive law firms he engaged between October 2016 and July 2018 failed to act on his instructions, and annexed a receipt of Kshs. 100,000 dated 27 October 2016 for 'legal fees'. The respondent, the administratrix ad litem of the deceased plaintiff's estate, opposed, contending the delay of about two years was unreasonable, the decree had been executed, the titles had reverted to the deceased, and the applicant could pursue his claim in the succession cause. Counsel for the respondent dropped the objection that the application should have been filed in the Court of Appeal. The court held that the discretion to extend time must be exercised judiciously, that the period between October 2016 and January 2018 was wholly unexplained, that the applicant was guilty of laches, and that the death of the plaintiff on the date of judgment was a red herring. The application was dismissed with costs. Judgment delivered at Nakuru on 28 February 2019 by Munyao Sila J.

Key legal issues

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01

Whether the ~2-year delay in filing the Notice of Appeal was adequately explained

Holding

The delay was considerable and unexplained; the applicant was guilty of laches and the extension of time was refused.

Reasoning

Judgment was delivered on 18 October 2016 and the application filed on 8 October 2018, nearly two years later. The applicant attributed the delay to successive advocates who failed to act, but could not explain the entire of 2017, during which he made no efforts to follow up or engage other counsel. The decree had also been executed and the titles reverted to the deceased plaintiff.

p. 2
02

Whether the death of the plaintiff around the date of judgment affected the application

Holding

The point was a red herring, as the plaintiff died on the same date as judgment and the applicant did not rely on it as a cause of delay.

Reasoning

The court noted it could not tell whether the plaintiff died before or after delivery of judgment, and that in any event the applicant's explanation for delay rested on the failure of instructed advocates, not on the plaintiff's death. The issue was therefore immaterial to the discretion.

p. 2

Legal principles established

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  • The power to extend time is a discretion that must be exercised judiciously, and considerable unexplained delay may justify refusal of an extension application

Court orders

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  1. 1.The application dated 8 October 2018 for extension of time to file a Notice of Appeal is dismissed with costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 50 Rule 6
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act, Cap 9; Section 95 of the Civil Procedure Act, Cap 21; Order 50 Rule 6 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, "Margaret Wangui Wambugu: Legal representatives of the estate of hannah wanjiru wangai (Deceased) v Simon Kagiri [2019] KEELC 4436 (KLR)", Case Analysis (2019). Not stated in judgment (application dated 8 October 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4436/eng@2019-02-28

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