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ELCDismissedNot stated in the judgment (arising from SPMCC No. 366 of 2006)· [2019] KEELC 4446 (KLR)

Lydia Wairimu Kimani v Beliah Wanjiru Wachira [2019] KEELC 4446 (KLR)

High Court of Kenya
28 February 2019
1,768 words in judgment
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The bottom line

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The High Court refused a Kenyan appellant's request to appeal seven years late because she gave no credible reason for the delay.

What this practically means

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Executive summary

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This is a ruling of the High Court at Murang'a (J G Kemei, J) on a Notice of Motion filed on 15/11/2016 by Lydia Wairimu Kimani under Orders 42 and 50 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, seeking leave to appeal out of time against the judgment in SPMCC No. 366 of 2006, in which her suit concerning land parcel LOC 13/KAGOE/163 was dismissed on 11/9/2009. The Respondent filed grounds of opposition terming the application incompetent and an abuse of process. The court framed a single issue: whether the Applicant deserved leave to file the appeal out of time. Applying section 79G, the court noted the 30-day period had lapsed in December 2009, no certificate of delay was proffered, and extension required good and sufficient cause. The Applicant's sole explanation - that she went into delirium after judgment - was unsupported by any medical report. She also failed to attach a draft memorandum of appeal to demonstrate an arguable appeal, and the suit land had been transferred to third parties as far back as 1995, meaning the Respondent and third parties would be prejudiced. Invoking the principle that there must be an end to litigation and that a successful litigant's right to enjoy the fruits of judgment must be respected, the court found the seven-year delay unexplained and dismissed the application with costs to the Respondent.

Key legal issues

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01

Whether the Applicant established good and sufficient cause for the 7-year delay in filing her appeal

Holding

She did not; the pleaded reason of delirium was unsupported by any medical report, so the delay was unexplained

Reasoning

The Applicant attributed the delay to having gone into delirium and lost her senses after judgment. The court found the assertion vague and noted she produced no medical report proving her health impaired her capacity. Citing section 79G and case law, the court held the applicant must show specific, valid reasons and that delay must be explained; here it was not.

p. 2
02

Whether the Applicant demonstrated an arguable appeal

Holding

No; she failed to attach a draft memorandum of appeal, leaving the court without material to assess the merits

Reasoning

Beyond faulting the magistrate for denying a refund of the purchase price, the Applicant provided no draft memorandum of appeal. Without it the court could not apply its mind to whether the intended appeal was arguable, a standard factor in extension-of-time applications.

p. 2
03

Whether prejudice to the Respondent and third parties weighed against extension

Holding

Yes; the suit land had been transferred to third parties in 1995 and there must be an end to litigation

Reasoning

The impugned judgment recorded that the suit parcel had been transferred to third parties. Allowing the appeal seven years later would prejudice both the Respondent and the current registered owners. The court invoked the principle of certainty and finality of litigation to refuse the indulgence.

p. 3

Legal principles established

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  • An appeal may be admitted out of time only if the appellant satisfies the court that there was good and sufficient cause for not filing in time, and the burden of showing that cause lies on the applicant.
  • The law sets no minimum or maximum period of delay; any delay must simply be explained with valid and clear reasons.
  • Discretionary powers must be exercised judiciously, not whimsically or erratically.
  • The right of appeal must be balanced against the successful litigant's right to enjoy the fruits of judgment.

Court orders

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  1. 1.The Notice of Motion dated and filed on 15/11/2016 seeking leave to appeal out of time is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 50
  • Civil Procedure RulesOrder 42
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 79G
  • Constitution of KenyaNot specified
  • Limitation of Actions ActNot specified

Cases cited (5)

  • Shah V Mbogo
    (1973) EA 163
  • Vallabhadas Damodar trading as D JAMNADAS & Sons Vs Esmail & Misando
    CA NO 21 of 1975
  • MONICA MALEL & ANOR VS. R ET AL
    ELDORET CIVIL APPL. NO. NAI 246 OF 2008
  • HAYWOOD V COPE
    (1858) 25 BEAV 140
  • M/S Portreitz Maternity -vs- James Karanga Kabia
    Civil Appeal No. 63 of 1997
Jurisdiction invoked
Sections 3A and 79G of the Civil Procedure Act and Orders 42 and 50 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, "Lydia Wairimu Kimani v Beliah Wanjiru Wachira [2019] KEELC 4446 (KLR)", Case Analysis (2019). Not stated in the judgment (arising from SPMCC No. 366 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4446/eng@2019-02-28

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