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ELCPartially AllowedMiscellaneous Application (Notice of Motion dated 17th September 2021) arising from Machakos Civil Suit No. 871 of 2012· [2022] KEELC 23 (KLR)

Kikwa v Muli & another (Environment and Land Miscellaneous Application E060 of 2021) [2022] KEELC 23 (KLR)

High Court of Kenya
4 May 2022
1,660 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Applicant moved the High Court at Machakos by Notice of Motion dated 17th September 2021 seeking leave to appeal out of time against the judgment of Hon. E. M. Keago (CM) delivered on 22nd July 2021 in Machakos Civil Suit No. 871 of 2012, or in the alternative that the annexed Memorandum of Appeal be deemed properly filed, together with orders of stay of execution pending the application and pending the intended appeal. The application was opposed by the 1st Respondent, who argued that the delay was inordinate, that no arguable appeal or substantial loss had been demonstrated, and that no security had been offered. The court identified the single issue of whether the applicant met the threshold for the orders sought. Applying section 79G of the Civil Procedure Act and the Supreme Court's criteria in Salat v IEBC, the court found the delay of 35 days was occasioned by counsel filing the appeal in the wrong court (High Court Civil Appeal No. 140 of 2021, subsequently withdrawn) and that counsel had taken full responsibility. Following Vishva Stone Suppliers, the court held it would be unfair to deny the applicant the right of appeal on account of counsel's mistake, and granted leave to appeal out of time, the appeal to be filed within 14 days. However, the court declined stay of execution under Order 42 because the intended appeal had not yet been filed and the applicant had not attached the lower court judgment, denying the court the ability to appreciate what ought to be stayed. Each party was ordered to bear their own costs.

Key legal issues

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01

Extension of time to file appeal out of time

Holding

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

Reasoning

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.

p. 3
02

Stay of execution pending intended appeal under Order 42

Holding

Stay declined because the intended appeal had not yet been filed and the applicant did not attach the lower court judgment

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The prayer for stay of execution pending intended appeal is declined
  3. 3.Each party shall bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (8)

  • Maureen Agutu v Paul Mboya
    [2019] eKLR
  • Vishva Stone Suppliers Company Ltd v RSR Stone (2006) Limited
    [2020] eKLR
  • Victory Construction v BM (a minor suing through next friend on PMM)
    [2019] eKLR
  • Christopher Muriithi Ngugi v Eliud Ngugu Evans
    [2016] eKLR
  • Tobias O. See v Maseno University & 3 Others
    [2016] eKLR
  • SS Sehmi General Building & Civil Contractors Limited v CJ Securities Limited
    [2021] eKLR
  • County Executive of Kisumu v County Government of Kisumu & Others
    [2017] eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others
    [2014] eKLR
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

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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, "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.