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ELCDismissedRuiru SPMC MCL & E E058 of 2021· [2022] KEELC 2006 (KLR)

Mary Wangui Njora & 11 others v John Ndungu Mwangi [2022] KEELC 2006 (KLR)

High Court of Kenya
17 January 2022
BEB M Eboso
1,216 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused to extend time to appeal because the applicants gave contradictory excuses for the delay, showing honesty is essential.

What this practically means

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Executive summary

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The applicants moved the court by notice of motion dated 6/9/2021 seeking enlargement of time within which to lodge an appeal against a ruling delivered by Hon. C.A. Otieno–Omondi SPM in Ruiru SPMC MCL & E E058 of 2021, in which their suit had been struck out. Their advocate, Prof. Kiama Wangai, deposed through Mary Wangui Njora's affidavit that he was unaware of the virtual delivery of the ruling on 23/7/2021 and only learnt of it on 3/9/2021, further that he was unable to log into the virtual platform. The applicant contended a 13-day delay was not inordinate and that the intended appeal had a high chance of success. The respondent opposed, asserting the ruling date had been fixed in court on 2/6/2021 in the presence of both advocates, and that the explanations given were contradictory and untrue. Relying on the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat v IEBC and the Court of Appeal's guidance in Leo Sila Mutiso v Rose Hellen Wangare Mwangi, the court framed a single issue: whether the applicants had satisfied the criteria for enlargement of time under Section 79G of the Civil Procedure Act. Holding that the applicants had tendered sharply contradictory explanations - claiming both ignorance of, and inability to attend, the ruling delivery - and noting the ruling date had been fixed in their advocate's presence, the court found no good and sufficient cause. It declined the application and awarded costs to the respondent.

Key legal issues

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Whether the applicants satisfied the criteria for enlargement of time to lodge an appeal

Holding

The application was dismissed because the applicants' explanations for the delay were contradictory and not bona fide, and no good and sufficient cause under Section 79G was shown

Reasoning

The court applied the Salat and Leo Sila Mutiso principles requiring a reasonable, candid explanation for the delay and consideration of prejudice and merits. The applicants alternately claimed ignorance of the ruling date and inability to log into the virtual court, explanations the court found sharply contradictory. The respondent's affidavit showed the ruling date was fixed in the presence of their advocate. Absent good and sufficient cause, discretion could not be exercised in their favour, and the multiplicity of prior litigation over the suit property weighed against a casual enlargement.

p. 2

Legal principles established

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  • A party seeking to invoke the court's discretion to enlarge time is expected to present a candid and bonafide explanation for the delay

Court orders

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  1. 1.The notice of motion dated 6/9/2021 is declined (dismissed)
  2. 2.The respondent shall have costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 79G

Cases cited (2)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2013] eKLR
  • Leo Sila Mutiso v Rose Hellen Wangare Mwangi
    [Civil Application NAI 255 of 1997]
Jurisdiction invoked
Section 79G of the Civil Procedure Act

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, "Mary Wangui Njora & 11 others v John Ndungu Mwangi [2022] KEELC 2006 (KLR)", Case Analysis (2022). Ruiru SPMC MCL & E E058 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2006/eng@2022-01-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.