Nganga v David & 2 others
The bottom line
#A Mombasa court let a landowner appeal late because of Covid-19 and her lawyer's mistake, but she must deposit Kshs 2.5 million as security first.
What this practically means
#Executive summary
#Key legal issues
#Whether the conditions for stay of execution pending appeal were met
Court found sufficient cause and willingness to furnish security, but found substantial loss not demonstrated since no execution had occurred
The court set out the Order 42 rule 6 conditions: sufficient cause, substantial loss, no unreasonable delay and security. It found sufficient cause in the applicant's long occupation and the security offered by the immovable property, but was not convinced on substantial loss because no execution of the decree had been carried out since judgment. It nonetheless allowed the application overall, invoking the overriding objective.
Whether extension of time to file a notice of appeal out of time should be granted
Extension granted; the Covid-19 pandemic disruption constituted a reasonable and cogent explanation for the delay despite the advocate's glaring mistakes
The court applied the Salat principles (length of delay, reasons, chances of appeal succeeding, prejudice to respondent). It took judicial notice of the 2020 Covid-19 disruption to movement and access to justice, found the reasons reasonable, and invoked the oxygen principles under the Environment and Land Court Act and Article 159(2) of the Constitution to grant the relief despite the disturbing conduct of the advocates.
Whether the delay of about seven months was inordinate
The court acknowledged the delay was undue and unreasonable but excused it in the pandemic context
The court accepted the respondent's reliance on the Salat principles and found the filing on October 23, 2020, seven months after judgment, was clearly an undue and unreasonable delay from the 30-day statutory timeline. However, it nonetheless treated the pandemic and the advocate's mis-diarising of the judgment date as sufficient reason and proceeded to consider enlargement under section 7 of the Appellate Jurisdiction Act and section 79G.
Costs
Although the applicant succeeded, each party was to bear their own costs
The court noted costs follow the event under section 27(1) of the Civil Procedure Act, and that the applicant had succeeded, but in the court's view it was fair that each party bear their own costs of the application.
Legal principles established
#- Extension of time is an equitable remedy available only to a deserving party who must act candidly and honestly and explain the delay
- A mistake by counsel should not ordinarily be visited on an innocent client where the interests of justice so dictate
Court orders
#- 1.The notice of motion application dated October 23, 2020 be and is hereby allowed
- 2.The 1st defendant/applicant directed to deposit Kshs 2,500,000 in an escrow joint account of the Law Firms of Messrs Tindika Co Advocates and Kivuva Kitonga Advocates as security for costs within thirty (30) days pending hearing and final determination of the appeal before the Court of Appeal
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A & 63(e) of the Civil Procedure Act Cap 21, section 7 of the Appellate Jurisdiction Act Cap 9 and Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nganga v David & 2 others", Case Analysis (2022). Environment and Land Case Civil Suit 586 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13416/eng@2022-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.