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ELCDismissedNot stated in the judgment (application dated 4/1/2021, filed 6/1/2021)· [2021] KEELC 3060 (KLR)

Simon Ndichu Njoroge v Rahab Wanjiru Mbogo (sued as the administrator of the Estate of Mbogo Njoroge alias Samuel Mbogo) [2021] KEELC 3060 (KLR)

Environment and Land Court
26 May 2021
2,172 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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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

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Executive summary

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This ruling by J.G Kemei, J, of the Environment and Land Court determines the Applicant's notice of motion dated 4/1/2021 seeking, principally, leave to file a notice of Appeal out of time against the court's judgment of 11/4/2019, extension of time, deeming orders, and stay of execution pending the intended appeal, together with substitution of the firm of Orwa Seda & Co. Advocates for P.W Macharia Associates. The court unopposed-granted prayer (b) allowing the incoming advocates on record. On extension of time, the court applied the Salat and Njagi Wanjeru principles and held that the Applicant had not given satisfactory reasons for the delay: judgment was delivered in the presence of her advocates on 11/4/2019, her email of 27/06/2019 showed she already knew the appeal had not been filed when time was already spent, and she took over 20 months in total to bring the application. She also failed to annex instructions to her former advocates or a draft memorandum of appeal, so the court could not assess the appeal's chances of success. On stay of execution, the court found the application suffered inordinate unexplained delay, that the Applicant had not proved specific substantial loss per Machira v East African Standard, and that she offered no security for due performance; execution had in any event substantially proceeded, the suit land having been subdivided into four portions pursuant to a Land Control Board consent. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether to grant leave to file a notice of Appeal out of time

Holding

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.

Reasoning

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.

p. 3
02

Whether to grant stay of execution of the judgment of 11/4/2019

Holding

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.

Reasoning

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.

p. 3
03

Whether the incoming firm of advocates should come on record

Holding

Granted as prayed, as the Respondent did not oppose prayer (b).

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Prayer (b) granted: the firm of Orwa Seda & Company Advocates placed on record in place of M/S P.W Macharia Associates
  2. 2.The application is dismissed with costs to the Respondent
  3. 3.It is so ordered

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Appellate Jurisdiction ActSection 7 Rules 47, 74, 75 and 85
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63 and 95
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (4)

  • Nicholas Kiptoo Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others
    Application No. 16 of 2014
  • Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others
    SC Application No. 15 of 2014
  • Njagi Wanjeru & Company Advocates v Ben Momanyi t/a Momanyi & Associates
  • Machira T.A Machira & Co. Advocates vs. East African Standard (No.2)
    (2002) KLR 63
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

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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, "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.