County Executive Member for Lands, Housing, Physical Planning and Urban Development Uasin Gishu County Government & another v Benard Gikundi Mwarania [2021] KEELC 1949 (KLR)
The bottom line
#Kenya's High Court allowed a county government to appeal late, ruling that registry delays are excusable and that filing an appeal before asking for leave is proper procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the court should admit the appeal out of time
Yes - the delay was explained and supported by a certificate of delay; the appeal filed on 2nd March 2021 together with the application for leave was procedurally proper.
Section 79G of the Civil Procedure Act permits admission of an appeal out of time on good and sufficient cause. The ruling was delivered 12th November 2020 but the certified copy was only supplied on 24th February 2021 after several letters to the registry, and a certificate of delay was exhibited. Filing the memorandum of appeal before seeking leave is the correct procedure, avoiding an application to admit a non-existent appeal.
Whether the threshold for leave to file out of time was met
Yes - applying the Muringa Company Ltd considerations, the delay was not inordinate, was explained, and no prejudice to the respondent was demonstrated.
The court applied the considerations in Muringa Company Limited v Archdiocese of Nairobi Registered Trustees: length of and reasons for delay, prejudice, conduct of parties, right of appeal and chances of success. The applicants gave a chronology including letters to the court for proceedings, decree and a certificate of delay; the court perused the record and found the delay not inordinate.
Whether stay of proceedings in the lower court should issue pending appeal
Yes - the application was allowed as prayed; the applicant established an arguable appeal, expeditious application and sufficient cause.
Applying Kenya Wildlife Service v Mutembei, Global Tours & Travels (Ringera J) and related authority, the court weighed the need for expeditious disposal, the arguability of the intended appeal (ownership/allocation of the suit parcel), and the expeditious bringing of the application, and found the application merited.
Legal principles established
#- An intending appellant under the proviso to Section 79G must file the appeal and simultaneously seek leave to have it admitted out of time; filing first then regularising is the correct procedure.
- Delay occasioned by the court registry's failure to supply proceedings/ruling is excusable, particularly where supported by a certificate of delay.
- Stay of proceedings is a drastic remedy granted only in the interest of justice; the test is high and stringent.
Court orders
#- 1.The applicants' appeal against the judgment/ruling of the Magistrates' Court in Eldoret CMCC No. 67 of 2020 is admitted out of time
- 2.The Notice of Motion dated 15th March, 2021 is allowed as prayed, including stay of proceedings in Eldoret CMCC No. 67 of 2020 pending hearing and determination of the appeal
- 3.Costs of the application to be in the cause (as prayed)
- On appeal from
- Magistrates' Court, Eldoret
- ELDORET CMCC NO. 67 of 2020
- Jurisdiction invoked
- Section 79G and Section 95 of the Civil Procedure Act (Cap 21) - proviso permitting admission of an appeal out of time
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Executive Member for Lands, Housing, Physical Planning and Urban Development Uasin Gishu County Government & another v Benard Gikundi Mwarania [2021] KEELC 1949 (KLR)", Case Analysis (2021). Notice of Motion dated 15th March, 2021 (Eldoret High Court Civil Appeal arising from Eldoret CMCC No. 67 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1949/eng@2021-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.