Simon Ndichu Njoroge v Rahab Wanjiru Mbogo (sued as the administrator of the Estate of Mbogo Njoroge alias Samuel Mbogo) [2021] KEELC 3060 (KLR)
The bottom line
#A Kenyan court refused to extend time for an appeal filed 20 months late because the landowner gave no credible explanation for the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether to grant leave to file a notice of Appeal out of time
Refused. The Applicant was aware by 27/06/2019 that no appeal had been filed, yet took over 20 months in total to apply, and gave no satisfactory explanation for the delay nor annexed a draft memorandum of appeal to show chances of success.
The court applied the Salat and Njagi Wanjeru principles: length and reason for delay, chances of appeal succeeding, and prejudice to the respondent. The judgment was delivered in the presence of the Applicant's advocates on 11/4/2019; correspondence of 27/06/2019 showed she already knew the appeal had not been filed, when time was already spent. No instructions to the former advocates were annexed and no draft memorandum was exhibited.
Whether to grant stay of execution of the judgment of 11/4/2019
Refused. The conditions in Order 42 Rule 6(2) were not met: the application suffered inordinate unexplained delay, substantial loss was not proved, and no security for due performance was offered.
Order 42 Rule 6(2) requires substantial loss, absence of unreasonable delay, and security. The court found the delay inordinate and unexplained. Relying on Machira v East African Standard, mere assertion of substantial loss without specific particulars is insufficient. The applicant also failed to proffer any security and did not prosecute this prayer fully, focusing only on extension of time. Substantial execution had already occurred, including subdivision of the suit land.
Whether the incoming firm of advocates should come on record
Granted as prayed, as the Respondent did not oppose prayer (b).
The court noted that from the pleadings and evidence it was evident the Respondent was not opposed to Orwa Seda & Company Advocates replacing P.W Macharia Associates, and the court accordingly granted that prayer as sought.
Legal principles established
#- Extension of time is an equitable remedy available only to a deserving party at the Court's discretion; the applicant must explain the delay, show lack of prejudice to the respondent, and bring the application without undue delay
- The factors for extension of time are the length of the delay, the reason for the delay, the chance of the appeal succeeding and the degree of prejudice to the respondent
- In stay of execution applications, the applicant must prove specific details of substantial loss and offer security; mere assertion of loss is insufficient
Court orders
#- 1.Prayer (b) granted: the firm of Orwa Seda & Company Advocates placed on record in place of M/S P.W Macharia Associates
- 2.The application is dismissed with costs to the Respondent
- 3.It is so ordered
- Jurisdiction invoked
- Order 9 Rule 9 of the Civil Procedure Rules, sections 1A, 1B, 3, 3A, 63 and 95 of the Civil Procedure Act and section 7 Rules 47, 74, 75 and 85 of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Ndichu Njoroge v Rahab Wanjiru Mbogo (sued as the administrator of the Estate of Mbogo Njoroge alias Samuel Mbogo) [2021] KEELC 3060 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 4/1/2021, filed 6/1/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3060/eng@2021-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.