Charles Kinyanjui Kimani (Suing as legal representative of Jason Kimani Mwangi (Deceased) v Thabitha Rinka & 4 others [2022] KEELC 1720 (KLR)
The bottom line
#A Kenyan court excused a 13-day delay in filing an appeal but refused a stay of execution because the prayer was badly drafted.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of 13 days in filing the Memorandum of Appeal should be excused under Section 95 of the Civil Procedure Act
Yes. The delay of 13 days was not inordinate, and although no documentary proof of illness was provided, the court accepted the explanation on humanitarian basis and extended time
The court invoked the Salat criteria from the Supreme Court, noting that extension of time is discretionary and case-specific. The Applicant's explanation - that he had a sick patient in hospital and accidentally forgot to give instructions - was accepted despite the absence of documentary evidence, on humanitarian grounds. A 13-day delay was held not to be inordinate, and the Respondents would suffer no prejudice as they would retain their judgment and be compensated with costs if the appeal succeeded.
Whether stay of execution pending the intended appeal could be granted
No. Prayer C was defectively drafted and incapable of being granted; it sought to stay execution of an intended appeal, which is self-defeating
The court observed that the Applicant sought leave to file an appeal out of time while simultaneously seeking to stay execution of the intended appeal - an incoherent prayer. Citing Issa Ahmed v Mohamed Al-Sawae, the court held it could not grant a relief not properly sought in pleadings. Additionally, the respondents had argued the subordinate court judgment was a negative order incapable of being stayed, and no bill of costs had been taxed. The prayer was dismissed.
Legal principles established
#- Extension of time is an equitable remedy available to a deserving party at the discretion of the Court, and the applicant bears the burden of explaining the delay to the satisfaction of the court
- The law does not fix a minimum or maximum period of delay; the delay must be satisfactorily explained to unlock the court's discretionary power
Court orders
#- 1.The Applicant is granted Leave of Fourteen (14) Days from the delivery of the Ruling to file the appropriate Memorandum of Appeal
- 2.The Applicant shall file the Record of Appeal within Forty-Five (45) Days from the date of filing of the Memorandum of Appeal
- 3.Costs of the Application awarded to the Respondents
- On appeal from
- Sub-Ordinate Court (Kilgoris)
- KILGORIS ELC CASE NO. 24 OF 2018
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 79C and 95 of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Power & Lighting Company Ltd v Dancan M. Mutunga[2023] KEELC 19074 (KLR)24 Jul 2023
- Kenya Power & Lighting Company Ltd v Dancan M. Mutunga[2023] KEELC 19074 (KLR)24 Jul 2023
Cite this brief
#Cite this brief
Caselaw, "Charles Kinyanjui Kimani (Suing as legal representative of Jason Kimani Mwangi (Deceased) v Thabitha Rinka & 4 others [2022] KEELC 1720 (KLR)", Case Analysis (2022). Kilgoris ELC Case (Ruling dated 2nd November 2021 Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1720/eng@2022-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.