Joseph Ngingo Nduati & 2 others v County Government of Nairobi & 2 others [2021] KEELC 1471 (KLR)
The bottom line
#A Kenyan court allowed landowners to appeal five months late because they could prove the court delivered judgment without notifying them.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established sufficient cause for the delay of about five months in filing the intended appeal
The delay was plausible and excusable because the judgment was delivered without notice to the applicants despite their repeated written follow-ups.
The court found the applicants documented their efforts: letters dated 10/07/2020, 16/09/2020, 12/10/2020 and 21/01/2021 seeking the judgment, and the application followed within weeks of the last request. The respondents did not oppose. The court found no reason to doubt the explanation, satisfied itself the reason was genuine, and held prejudice to the respondent was absent, warranting exercise of discretion under Section 79G.
Whether the length of delay disentitled the applicants from enlargement of time
The delay of about five months was not so long as to bar relief, and had to be weighed against the reasons for the delay.
The court compared the delay with authorities where longer (20 months in Mwende Muthoni) and shorter (Aviation Cargo) delays led to refusal. It found the delay here shorter than in Mama Day Nursery but longer than in Aviation Cargo, making the decisive factor the plausibility of the explanation, which it accepted.
Legal principles established
#- An appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
- The factors in an extension-of-time application are the length of the delay, the reason for the delay, the arguability of the intended appeal, and prejudice to the opposite party.
- Arguability of the intended appeal is not a mandatory requirement for enlargement of time.
Court orders
#- 1.The applicant has 7 days from the date of the reading of this ruling to file and serve Memorandum of Appeal
- 2.Since the application is undefended there will be no order as to costs
- On appeal from
- Chief Magistrate's Court, Milimani Commercial Courts
- Jurisdiction invoked
- Section 79G, 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) and Order 50 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Ngingo Nduati & 2 others v County Government of Nairobi & 2 others [2021] KEELC 1471 (KLR)", Case Analysis (2021). Miscellaneous Application No. E026 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1471/eng@2021-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.