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ELCPartially AllowedKilgoris ELC Case (Ruling dated 2nd November 2021 Application)· [2022] KEELC 1720 (KLR)

Charles Kinyanjui Kimani (Suing as legal representative of Jason Kimani Mwangi (Deceased) v Thabitha Rinka & 4 others [2022] KEELC 1720 (KLR)

High Court of Kenya (Environment and Land Court)
3 February 2022
2,318 words in judgment
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The bottom line

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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

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Executive summary

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This was a ruling by the High Court (Environment and Land Court, Kilgoris) on a Notice of Motion dated 2nd November 2021 by Charles Kinyanjui Kimani seeking leave to file an appeal out of time against the judgment of the Sub-Ordinate Court in Kilgoris ELC Case No. 24 of 2018 delivered on 23rd September 2021, together with a prayer for stay of execution. The judgment had allowed 28 days to appeal, which lapsed on 20th October 2021; the application was therefore filed 13 days late. The Applicant explained the delay as arising from having a sick patient in hospital and accidentally failing to give instructions in time, though no documentary evidence of the illness was produced. The Respondents opposed through Grounds of Opposition and submissions, relying on Nicholas Kiptoo Korir Salat v IEBC and Philip Kiprotich Tuitoek, arguing there was no sufficient cause, the delay was inordinate, and the negative order of dismissal could not be stayed. The court, per Emmanuel M. Washe J, applied Section 95 of the Civil Procedure Act and the Salat principles, accepted the explanation on humanitarian basis despite the lack of documentary proof, and held the 13-day delay was not inordinate. It granted leave of 14 days to file the Memorandum of Appeal and 45 days thereafter to file the Record of Appeal. However, the stay prayer was refused as defectively drafted and self-defeating, the court citing Issa Ahmed v Mohamed Al-Sawae on the limits of granting unpleaded reliefs. Costs were awarded to the Respondents.

Key legal issues

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Whether the delay of 13 days in filing the Memorandum of Appeal should be excused under Section 95 of the Civil Procedure Act

Holding

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

Reasoning

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.

p. 4
02

Whether stay of execution pending the intended appeal could be granted

Holding

No. Prayer C was defectively drafted and incapable of being granted; it sought to stay execution of an intended appeal, which is self-defeating

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Applicant is granted Leave of Fourteen (14) Days from the delivery of the Ruling to file the appropriate Memorandum of Appeal
  2. 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. 3.Costs of the Application awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 79G
  • Civil Procedure Act, Cap 21Section 79C
  • Civil Procedure Act, Cap 21Section 95
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A
  • Constitution of KenyaRight of appeal (constitutional right of appeal)

Cases cited (6)

  • Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited
    Civil Application No. 55 of 2020
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 Others
    Application No. 16 of 2014 eKLR
  • Philip Kiprotich Tuitoek v Edna Jebiwott Kiplagat & 2 Others
    (2021) eKLR
  • Jaldesa Tuke Dabelo v IEBC & Another
    (2015) eKLR
  • Raila Odinga & 5 Others v IEBC & 3 Others
    (2013) eKLR
  • Issa Ahmed & 16 Others v Mohamed Al-Sawae
    (2021) eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.