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ELCAllowedEnvironment and Land Miscellaneous Application E183 of 2022· [2022] KEELC 13498 (KLR)
One Step Family Group v Njenga & another (In their capacity as representatives of the Estate of Peter Njenga Ringiria)
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#What this practically means
#Executive summary
#The applicant, One Step Family Group, sought leave by notice of motion dated September 16, 2022 to file and serve a memorandum of appeal out of time against the ruling of Hon. B.M. Kimemia, Chief Magistrate, delivered on June 24, 2022 in Nairobi Chief Magistrates Court Civil Suit No. 5837 of 2018, in which its application to amend pleadings was declined. The applicant explained that the counsel handling the matter went on maternity leave and the time for lodging an appeal lapsed before she resumed duties, and contended that the respondents would suffer no prejudice. The respondents, Hannah Wanjiku Njenga and Paul Njau Njenga, as representatives of the Estate of Peter Njenga Ringiria, opposed through a replying affidavit of Paul Njau Njenga, arguing that other advocates in the firm could have handled the matter, that the applicant came to court in bad faith, and that no certificate of delay was filed. Mbugua J framed a single issue: whether leave to appeal out of time should be granted. Applying the First American Bank of Kenya v Gulab P Shah factors (explanation for delay, arguability, and compensability in costs), and noting that the right of appeal is constitutional though subject to the court's discretion, the court found the maternity leave a plausible explanation and held any prejudice curable by costs. The application was allowed: the memorandum of appeal to be filed and served within 14 days failing which the orders lapse; the applicant to pay the costs of the suit; and a copy of the judgment to be placed in the substantive appeal file.
Key legal issues
#01
Whether the applicant should be granted leave to file a memorandum of appeal out of time
Holding
Leave granted; the delay was plausibly explained by counsel's maternity leave and any prejudice to the respondents could be cured by costs.
Reasoning
The court applied the First American Bank principles: explanation for delay, merits/arguability of the contemplated appeal, and compensability of the respondent in costs. It found the maternity leave of the counsel seized of the matter a plausible explanation, noted the applicant's contention that the respondents would suffer no prejudice, and held that any prejudice could be cured by costs. It therefore exercised its discretion in favour of the applicant, subject to a 14-day filing deadline and costs to the respondents.
Legal principles established
#- The right to appeal is a constitutional right, but the court retains an unfettered discretion to grant leave to file an appeal out of time, which must be exercised on material showing good cause.
- In deciding whether to enlarge time, the court considers the explanation for the delay, the arguability of the contemplated appeal, and whether the respondent can be compensated in costs.
Court orders
#- 1.Memorandum of appeal to be filed and served within 14 days from the date of delivery of the ruling, failing which the orders granted shall lapse
- 2.Applicant condemned to pay costs of the suit
- 3.A copy of the judgment to be placed in the substantive appeal file
- On appeal from
- Chief Magistrates Court at Nairobi
- CMCC 5837 of 2018
- Jurisdiction invoked
- Inherent discretion to enlarge time to file appeal against a subordinate court decision (application for extension of time to file memorandum of appeal and serve it out of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "One Step Family Group v Njenga & another (In their capacity as representatives of the Estate of Peter Njenga Ringiria)", Case Analysis (2022). Environment and Land Miscellaneous Application E183 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13498/eng@2022-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.