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ELCAllowedNotice of Motion dated 15th March, 2021 (Eldoret High Court Civil Appeal arising from Eldoret CMCC No. 67 of 2020)· [2021] KEELC 1949 (KLR)

County Executive Member for Lands, Housing, Physical Planning and Urban Development Uasin Gishu County Government & another v Benard Gikundi Mwarania [2021] KEELC 1949 (KLR)

High Court of Kenya
21 September 2021
3,708 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This ruling by M. A. Odeny J of the High Court determines a Notice of Motion dated 15th March 2021 by the County Government of Uasin Gishu and another, seeking admission out of time of their appeal against a ruling delivered on 12th November 2020 in Eldoret CMCC No. 67 of 2020 (Benard Gikundi Mwarania v County Government of Uasin Gishu & Another), together with stay of proceedings in the lower court pending the appeal. The applicants explained that although present at delivery of the ruling, they only obtained a certified copy on 24th February 2021 after several letters to the registry, and exhibited a certificate of delay. They filed the Memorandum of Appeal on 2nd March 2021 and the application for leave two days later, contending this was the correct procedure under the proviso to Section 79G of the Civil Procedure Act. The respondent objected that leave should have been sought before filing the appeal and that the memorandum should be struck out. The court rejected the objection, holding, in line with Asma Ali Mohamed v Fatime Mwinyi Juma, Gerald M'Limbiné v Joseph Kangangi and Apa Insurance Ltd v Muturi, that the correct procedure is to file the appeal and simultaneously seek leave, to avoid asking the court to admit a non-existent appeal. Applying the Muringa Company Ltd considerations, the court found the delay not inordinate, adequately explained and non-prejudicial. On stay of proceedings, applying the stringent test in Kenya Wildlife Service v Mutembei and the Global Tours & Travels principles, the court found the application merited and allowed it as prayed, with costs in the cause.

Key legal issues

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01

Whether the court should admit the appeal out of time

Holding

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.

Reasoning

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.

p. 4
02

Whether the threshold for leave to file out of time was met

Holding

Yes - applying the Muringa Company Ltd considerations, the delay was not inordinate, was explained, and no prejudice to the respondent was demonstrated.

Reasoning

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.

p. 5
03

Whether stay of proceedings in the lower court should issue pending appeal

Holding

Yes - the application was allowed as prayed; the applicant established an arguable appeal, expeditious application and sufficient cause.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 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. 3.Costs of the application to be in the cause (as prayed)

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 79G
  • Civil Procedure Act (Cap 21)Section 95
  • Civil Procedure RulesOrder 50 Rule 6

Cases cited (20)

  • Apa Insurance Limited vs Michael Kinyajui Muturi
    (2016)
  • Michael Kinyanjui Mbuthia V John Kamau Nganga
    HCCA 322 of 2008
  • Richard Ngetich & Another V Francis Vozena Kidiga
    HCCA 75/2012
  • Asma Ali Mohamed V Fatime Mwinyi Juma
    CA 75/2014 / [2014] eKLR
  • Nanasi Housing Co-operative Co. Ltd & another v John Muoho Njore
    [2020] eKLR
  • Thuita Mwangi vs Kenya Airways
    (2003) eKLR
  • Mutiso vs Mwangi
    (1997) KLR 630
  • Hellen Wanza Maeker, Bernard Njoroge Gathua & Another
    HCC Miscellaneous Application 286/2009
  • Gladys Wamuyu Ngira v Mary Wamaitha Ruiru
    [2016] eKLR
  • Charles Nyamwega v Asha Njeri Kimata & another
    [2017] eKLR
  • Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another
    [2015] eKLR
  • Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi
    [2014] eKLR
  • County Executive of Kisumu ... versus County Government of Kisumu and 8 Others
    Civil Application No. 3 of 2016
  • Gerald M'Limbine V. Joseph Kangangi
    [2009] eKLR
  • Muringa Company Limited v Archdiocese of Nairobi Registered Trustees
    [2020] eKLR
  • Samuel Chege Githua & Another v Sophia Nyokabi Wambui
    [2021] eKLR
  • Kenya Wildlife Service v James Mutembei
    (2019) eKLR
  • Kenya Postel Directories Limited v Yellow Pages Publishing & Marketing Ltd
    [2018] eKLR
  • Global Tours & Travels Limited - Winding-Up Cause No. 43 of 2000
  • Christopher Ndolo Mutuku & another v Cfc Stanbic Bank Limited
    [2015] eKLR
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

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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, "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.