Njoroge v Githinji & 2 others (Miscellaneous Application E026 of 2022) [2023] KEELC 122 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution could still issue
Stay refused as overtaken by events since the body had already been exhumed
The purpose of a stay of execution is to arrest the implementation of orders. Here the order for exhumation had been fully executed and both parties agreed the body had been exhumed. The court declined to make further findings on the stay prayer since nothing remained to be stayed.
Whether the Applicant established good and sufficient cause to warrant extension of time
Yes - delay of only 10 days was not inordinate, was explained by the Applicant's review application, the appeal was arguable, and no prejudice would be suffered by the Respondents
Applying the Thuita Mwangi factors, the court found the 10-day delay not inordinate; the Applicant had promptly filed a review application upon learning of the exhumation orders, which was dismissed; the draft memorandum of appeal showed an arguable appeal; and since the exhumation had occurred, the Respondents would suffer no prejudice. Public interest and administration of justice favoured interrogating the Applicant's allegations of perjury.
Legal principles established
#- Section 79G of the Civil Procedure Act is mandatory as to the 30-day period but contains a proviso permitting admission of an appeal out of time on good and sufficient cause
- In exercising discretion to enlarge time, the court considers the Thuita Mwangi v Kenya Airways factors: period of delay, reason for delay, arguability of appeal, prejudice to respondent, importance of compliance with time limits, and effect on administration of justice and public interest
Court orders
#- 1.Application dated 28th October 2022 allowed entirely in terms of prayers No. (c) and (d) - leave granted to appeal out of time and Memorandum of Appeal deemed duly filed and served
- 2.Applicant directed to file the Intended Appeal within 14 days from the date of the ruling
- 3.Failure to comply with the timelines directed, the orders granted shall lapse automatically
- 4.Costs of the application to be borne by the 1st Respondent
- On appeal from
- Senior Principal Magistrate's Court at Kandara
- MISC ELC No. E023 of 2022
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (proviso allowing admission of appeal out of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge v Githinji & 2 others (Miscellaneous Application E026 of 2022) [2023] KEELC 122 (KLR)", Case Analysis (2023). Miscellaneous Application dated 28th October 2022 (arising from Murang'a ELC Misc. Application; Lower Court: MISC ELC No. E023 of 2022, Kandara). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/122/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.