Joshua Kaburu Kimathi & another v Evangeline Kangwene [2020] KEELC 150 (KLR)
The bottom line
#A Kenyan court allowed a late land appeal because COVID-19 disrupted normal filing timelines, but refused a stay that wasn't properly requested.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant should be granted leave to appeal out of time under Section 79(g) of the Civil Procedure Act
Leave granted despite inordinate delay, taking judicial notice of disruption caused by the COVID-19 pandemic
An appeal from a subordinate court must be filed within thirty days under Section 79(g). Extension of time is an equitable remedy, not a right. Although the delay of almost four months was inordinate, the court took judicial notice that the COVID-19 health pandemic disrupted many activities and, in the interests of justice, gave the applicant an opportunity to ventilate the case before the superior court, with 14 days to file the appeal.
Whether a stay of execution should issue
Stay of execution declined because the prayer appeared only in the applicant's affidavit and not in the body of the application
The court noted that a prayer for stay of execution could not be granted where it was not properly sought in the notice of motion itself. Since the prayer was manifested only in the applicant's supporting affidavit and not in the body of the application, the court declined to grant any stay of execution at that stage.
Legal principles established
#- Extension of time is not a right of a party; it is an equitable remedy
Court orders
#- 1.Leave granted to the applicant to file an appeal within 14 days from the date of delivery of the ruling
- 2.Costs awarded to the respondent
- On appeal from
- Senior Resident Magistrate, Githongo Law Court
- Githongo ELC suit No. 9 of 2017
- Jurisdiction invoked
- Section 79(g) of the Civil Procedure Act; Section 1A & 1B of the Civil Procedure Act and Order 50 Rule 6 & 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Kaburu Kimathi & another v Evangeline Kangwene [2020] KEELC 150 (KLR)", Case Analysis (2020). Githongo ELC suit No. 9 of 2017 (ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/150/eng@2020-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.