Father Fautus Ndenyere & Canother v Lucy Waithira Karanja & another [2021] KEELC 3362 (KLR)

The court treated jurisdiction as the entry point. Section 7 of the Appellate Jurisdiction Act empowers the High Court to extend time for giving notice of intention to appeal even after expiry. Article 162(2) confers on the ELC the status of the High Court. The Court of Appeal had affirmed this position in Mary Wambui Njuguna v William Ole Nabala & 9 others, so the objection to jurisdiction failed.

Applying the restated principles, the court computed the delay by excluding the December recess under rule 3(e) of the Court of Appeal Rules and Section 26(1)(c) of the Court of Appeal (Organization and Administration) Act, leaving a seven-day delay. The court took judicial notice that Mr Muhia was a senior, elderly advocate, the respondents did not challenge the possibility of his difficulties joining the video-link session, the respondents conceded the applicants remained in possession, and the decree had not been executed.

Under Order 42 rule 6(1) and (2), the applicant must show substantial loss, that the application was made without unreasonable delay, and must furnish security. The judgment would result in eviction of applicants who had occupied the land since 1986, which constitutes substantial loss. The application was filed on 14th January 2021 alongside the notice of appeal and, accounting for the recess, the delay was not unreasonable. Security was fixed as a deposit of the party and party costs, with a one-year limit on the stay.