Sophia Ndinda Mwaka & another (suing as the legal representatives of the estate of Gedion Mwaka Kiveke – Deceased) v Patrick Masila Malu & 2 others [2022] KEELC 374 (KLR)
The bottom line
#A Kenyan court allowed an estate to appeal a dismissed land case a year late, accepting illness, counsel's absence, and COVID-19 as genuine reasons for the delay.
What this practically means
#Executive summary
#Key legal issues
#Change of advocate after judgment
The incoming firm was properly allowed on record under Order 9 Rule 9 of the Civil Procedure Rules, judgment having been passed in the lower court.
Order 9 Rule 9 requires a court order or consent for a change of advocate after judgment. The outgoing advocate, Mr. Ngulu, did not object, and the incoming firm sought to come on record in compliance with the provision, so the court allowed it.
Leave to appeal out of time
Leave granted; the Applicants gave plausible reasons for the delay (counsel abroad, illness, COVID-19 restrictions) and the intended appeal was arguable with no prejudice shown.
Applying the Mwangi v Kenya Airways factors (length and reason for delay, arguability, prejudice), the court found the explanations plausible: counsel was absent at judgment, the Applicants learned of it in August 2021, the 1st Applicant was unwell, and COVID-19 scaled down court operations. The respondents showed no prejudice, the land being registered in the 3rd Respondent's name.
Legal principles established
#- An extension of time requires the applicant to show arguability, not a high probability of success.
Court orders
#- 1.The firm of Donex Juma & Company Advocates allowed to come on record for the Applicants
- 2.Leave granted to the Applicants to appeal out of time against the judgment in Kangundo SPMCC No. 53 of 2014
- 3.Applicants directed to file and serve the Memorandum of Appeal within fourteen (14) days from the date of the ruling
- 4.Costs in the cause
- On appeal from
- Magistrates' Court (Kangundo)
- SPMCC No. 53 of 2014
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 79G & 95 of the Civil Procedure Act and Order 9(a) & 10 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sophia Ndinda Mwaka & another (suing as the legal representatives of the estate of Gedion Mwaka Kiveke – Deceased) v Patrick Masila Malu & 2 others [2022] KEELC 374 (KLR)", Case Analysis (2022). Notice of Motion dated 1st November, 2021 (Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/374/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.