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ELCAllowedThika High Court ELC Case No. 27 of 2017 (Notice of Motion filed 6th February 2020)· [2021] KEELC 3900 (KLR)

Francis Ndungu Njuguna & another v Paulina Gacambi Kariuki [2021] KEELC 3900 (KLR)

High Court of Kenya, Environment and Land Division
25 March 2021
LGL. Gacheru
2,746 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's High Court gave a landowner extra time to appeal and stopped land subdivision, because he was never told the judgment had been issued.

What this practically means

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Executive summary

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The 2nd Appellant/Applicant, Francis Ndungu Njau, moved the High Court at Thika by Notice of Motion seeking stay of execution of a judgment delivered by Nyambura Gacheru on 28th June 2019 in Thika ELC Case No. 27 of 2017, and leave to appeal out of time. He averred that he was never served with notice of the judgment, learned of it in September 2019 when served with a Notice of Appeal, and being a peasant farmer in Nyahururu needed time to organize resources to instruct his advocates. The Respondent, administrator of the Estate of Pauline Gacambi Kariuki, opposed, arguing the application was defective as the Applicant's advocates were not properly on record, that the delay was inordinate, and that no arguable appeal or pending appeal existed. The court framed three issues. On the first, it held the advocates were on record before judgment, so Order 9 Rule 9 leave was unnecessary. On the second, applying the Rule 4 principles from Leo Sila Mutiso and subsequent authority, it found the roughly four-month delay not inordinate, noting non-service of the judgment notice on the Applicant's advocates, and disregarding impecuniosity as a reason. Leave to appeal out of time was granted. On the third issue, applying Order 42 Rule 6(2) and the preservation principle in RWW v EKW, the court found substantial loss would result if partitioning proceeded and titles were issued, rendering a successful appeal nugatory, and granted the stay. The application was allowed entirely with costs in the cause. The ruling was delivered virtually on 25th March 2021 pursuant to COVID-19 directions.

Key legal issues

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01

Whether the application was defective for being filed by an Advocate not properly on record

Holding

The application was not defective; the law firm was on record before judgment

Reasoning

Order 9 Rule 9 requires leave where an advocate comes on record after judgment. The firm of Kiratu Kamunya & Company Advocates had been on record before judgment, so no leave was necessary and the objection failed.

p. 2
02

Whether the Applicant was entitled to leave to appeal out of time

Holding

Yes; the delay of about four months was not inordinate, as the Applicant was not served with notice of the judgment

Reasoning

Applying Rule 4 factors (length and reason for delay, chances of success, prejudice), the court found the Applicant's Advocates were not served with the judgment notice and the delay of around four months from 20th September 2019 was not inordinate. Impecuniosity was disregarded as a reason but did not defeat the application.

p. 3
03

Whether the Applicant was entitled to stay of execution pending appeal

Holding

Yes; substantial loss was demonstrated and the application was made timeously, with security conditions implicit

Reasoning

Under Order 42 Rule 6(2), the court found the Respondent was already in possession via adverse possession so no prejudice would arise, whereas if partitioning proceeded and titles issued, parties could dispose of the land, rendering a successful appeal nugatory. Preservation of the suit property justified the stay.

p. 4

Legal principles established

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  • The factors for extension of time are discretionary and non-exhaustive: length of delay, reason for delay, chances of success and prejudice to the respondent
  • Impecuniosity is not a valid reason for extending time to lodge an appeal
  • A single judge should not determine definitively the merits of an intended appeal when considering extension of time
  • The purpose of stay of execution pending appeal is to preserve the subject matter so the appeal, if successful, is not rendered nugatory
  • An Advocate already on record before judgment is properly on record and need not seek leave under Order 9 Rule 9

Court orders

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  1. 1.Leave granted to the Applicant to file an Appeal out of time against the Judgment delivered on 28th June 2019
  2. 2.Stay of execution of the Judgment of 28th June 2019 in Thika High Court ELC Case No. 27 of 2017 and all consequential orders and/or proceedings pending appeal
  3. 3.Costs of the Application to be in the cause
On appeal from
High Court of Kenya, Thika (Environment and Land Court)
ELC Case No. 27 of 2017
Jurisdiction invoked
Appellate jurisdiction of the High Court under Order 42 Rule 6 and Order 9 Rule 9 of the Civil Procedure Rules, and Rule 4 of the Court of Appeal Rules (extension 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, "Francis Ndungu Njuguna & another v Paulina Gacambi Kariuki [2021] KEELC 3900 (KLR)", Case Analysis (2021). Thika High Court ELC Case No. 27 of 2017 (Notice of Motion filed 6th February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3900/eng@2021-03-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.