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ELCAllowedNot stated in the judgment (ruling on Notice of Motion dated 5th August 2021)· [2022] KEELC 17 (KLR)

Wangari & another v Ngugi (Environment & Land Miscellaneous Case E009 of 2021) [2022] KEELC 17 (KLR)

High Court of Kenya
12 May 2022
3,278 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Murang'a court allowed late filing of a land appeal because waiting for certified court documents explained the delay.

What this practically means

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Executive summary

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This High Court ruling (Murang'a, L. Gacheru J) determined a Notice of Motion dated 5th August 2021 in which the Appellants/Applicants sought leave to file an appeal out of time against the judgment in Kandara ELC No. 3 of 2020 delivered on 29th April 2021. The Applicants, through their advocate Catherine Waithera Mwangi, explained that they applied for certified copies of the judgment and typed proceedings on the day of delivery and received them only on 16th July 2021, filing the application about two weeks later, and that the appeal was arguable with no prejudice to the Respondent. The Respondent, Daniel Mwangi Ngugi, opposed, contending that typed proceedings are not a prerequisite for filing an appeal, that the Applicants showed disregard for court timelines, and that the delay of over eight months was unjustified and prejudicial. The court framed a single issue: whether the application was merited. Relying on Section 79G of the Civil Procedure Act, Order 50 Rule 5, and settled principles from Leo Sila Mutiso, Salat, First American Bank and related authorities, the court considered the explanation for the delay, its length, the arguability of the appeal and prejudice. It held that a Memorandum of Appeal need not be accompanied by the judgment or proceedings, so the Applicants were misguided but their explanation was truthful, consistent and amounted to sufficient cause; the delay was excusable and not inordinate, and the Respondent's prejudice was unsubstantiated. The application was allowed entirely with costs in the cause, and the Applicants were directed to file the intended appeal within 14 days.

Key legal issues

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01

Whether the Appellants had shown sufficient cause for the delay in filing the appeal

Holding

The delay in waiting for certified copies of the judgment and proceedings, with application filed about two weeks after receipt, amounted to sufficient cause

Reasoning

The court found the appellants requested certified copies on the date of judgment and received them on 16th July 2021, filing the application on 5th August 2021. The explanation was uncontroverted and appeared truthful and consistent, falling within the definition of sufficient cause, though filing the appeal while awaiting proceedings would have avoided the delay.

p. 5
02

Whether the delay was inordinate

Holding

The delay was excusable and not inordinate

Reasoning

Applying Mwangi S. Kimenyi, the court held that inordinate delay depends on the circumstances of each case. Here the delay from judgment to application was explained by the wait for certified copies, and the application followed about two weeks after receipt of the copies, so the delay was not intentional, contumelious or inexcusable.

p. 5
03

Whether the Respondent would suffer prejudice if leave was granted

Holding

No substantiated prejudice; the respondent's claims were general and carried minimal weight

Reasoning

The respondent alleged prejudice from prolonged delay and wanted to utilise the property, but did not substantiate the prejudice. The court noted the appellants' constitutional right of appeal, tied to the right to fair hearing, cannot be limited.

p. 6
04

Whether typed proceedings and a certified judgment are required to file an appeal

Holding

They are not required at the time of filing the Memorandum of Appeal, so the appellants were misguided on that point

Reasoning

Order 42 of the Civil Procedure Rules requires only a Memorandum of Appeal; under Order 42 Rule 2 the certified copy of the decree may be filed later. Nonetheless the court appreciated the need to read the whole judgment before appealing and accepted the explanation.

p. 5

Legal principles established

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  • Factors for extension of time: length of delay, reasons for delay, chances of appeal succeeding, and prejudice to the respondent
  • A Memorandum of Appeal need not be accompanied by the judgment appealed against or the proceedings when filed
  • Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps

Court orders

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  1. 1.Leave granted to the Appellants/Applicants to file the intended appeal out of time
  2. 2.The application dated 5th August 2021 allowed entirely, with costs in the cause
  3. 3.Appellants/Applicants directed to file the intended Appeal within 14 days of the date of the ruling

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 50 Rules 5, 6 & 7
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42 Rules 1 & 2

Cases cited (12)

  • Hassan Nyanje Charo vs. Khatib Mwashetani & 3 others
    (2014) eKLR
  • Daniel Kakuta Karoi v. Tri-Clover Industries (9K) Limited
    (2021) eKLR
  • Daphne Parry v Murray Alexander Carson
    (1963) EA 546
  • Bethany Village Africa v Bank of Africa Kenya Limited
    (2021) eKLR
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No Nai 251 of 1997
  • Dilpack Kenya Limited v William Muthama Kitonyi
    [2018] eKLR
  • Feroz Begum Qureshi and Another vs. Maganbhai Patel and others
    [1964] EA 633
  • First American Bank of Kenya Ltd v Gulab P Shah & 2 Others
    Nairobi (Milimani) HCCC No. 2255 of 2000 [2002] 1 EA 65
  • Nicholas Kiptoo Arap Korir Salat versus Independent Electoral and Boundaries Commission & 7 others
    (2014) eKLR
  • The Hon Attorney General vs the Law Society of Kenya & another
    Civil Appeal (Application) No. 133 of 2011
  • Mwangi S. Kimenyi v Attorney General & Another
    (2014) eKLR
  • National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission
    [2017] eKLR
On appeal from
Kandara (subordinate court, ELC)
Kandara ELC No. 3 of 2020
Jurisdiction invoked
Sections 79G, 95 and 3A of the Civil Procedure Act and Order 50 Rules 6 & 7 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Wangari & another v Ngugi (Environment & Land Miscellaneous Case E009 of 2021) [2022] KEELC 17 (KLR)", Case Analysis (2022). Not stated in the judgment (ruling on Notice of Motion dated 5th August 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/17/eng@2022-05-12

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