Kikwa v Muli & another (Environment and Land Miscellaneous Application E060 of 2021) [2022] KEELC 23 (KLR)
The bottom line
#Kenya's High Court let a late appeal proceed because a lawyer's mistake caused the delay, but refused to pause enforcement until the appeal is actually filed.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to file appeal out of time
The 35-day delay occasioned by counsel filing the appeal in the wrong court was not inordinate and was satisfactorily explained; leave to appeal out of time granted
The court applied section 79G and the Salat criteria, noting the delay was 35 days from judgment to the application. Counsel filed the appeal in the wrong court (High Court Civil Appeal No. 140 of 2021) and took full responsibility. Following Vishva Stone Suppliers, the court held that a client should not be denied the right of appeal on account of counsel's mistake, and the delay was excusable.
Stay of execution pending intended appeal under Order 42
Stay declined because the intended appeal had not yet been filed and the applicant did not attach the lower court judgment
The court held that Order 42 confers discretion to grant stay only where an appeal has been filed; since the appeal was yet to be filed, the application should be considered upon filing. Further, the failure to attach the lower court judgment deprived the court of the ability to determine what and to what extent it should stay. The stay prayers were accordingly declined.
Legal principles established
#- Extension of time is not a right of a party but an equitable remedy available to a deserving party at the court's discretion, and the applicant bears the burden of explaining the delay
- Where delay in filing an appeal is occasioned by counsel's mistake and counsel has taken full responsibility, it is unfair to visit the responsibility on the client
Court orders
#- 1.Leave to appeal out of time is granted to the applicant; the appeal shall be filed within 14 days of the date of the order
- 2.The prayer for stay of execution pending intended appeal is declined
- 3.Each party shall bear their own costs
- On appeal from
- Chief Magistrate's Court at Machakos
- Machakos Civil Suit No. 871 of 2012
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act (extension of time to appeal from subordinate court to the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kikwa v Muli & another (Environment and Land Miscellaneous Application E060 of 2021) [2022] KEELC 23 (KLR)", Case Analysis (2022). Miscellaneous Application (Notice of Motion dated 17th September 2021) arising from Machakos Civil Suit No. 871 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/23/eng@2022-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.