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ELCAllowedMiscellaneous Application dated July 18, 2022 (arising from Kigumo CMCC No 121 of 2021)· [2023] KEELC 258 (KLR)

Gicharu v Gachui (Miscellaneous Application E016 of 2022) [2023] KEELC 258 (KLR)

High Court of Kenya
26 January 2023
4,068 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant, Nelson Njoroge Gicharu, moved the High Court at Murang'a by notice of motion seeking leave to file an appeal out of time and a stay of execution of the judgment and decree in Kigumo CMCC No 121 of 2021, in which an ex parte judgment had been entered against him on September 16, 2021. His application to set aside that judgment and judgment proceedings was dismissed by a ruling delivered on March 24, 2022 in the absence of both parties; the ruling had originally been scheduled for March 17, 2022 but the magistrate was away at Nkubu Law Courts. The applicant said he only learnt of the dismissal when served with a demand letter and decree on June 8, 2022, and filed the present application on July 18, 2022. The respondent opposed, contending the applicant was indolent, had not shown good and sufficient cause, and had not met the Order 42 rule 6(2) conditions for stay. The court, applying the Salat extension-of-time principles, found no evidence the applicant was notified of the new ruling date, held the 3½-month delay satisfactorily explained, and found the draft appeal arguable. On stay, applying Order 42 rule 6(2) and Butt v Rent Restriction Tribunal, it found a monetary decree under threat of execution posed a risk of substantial loss and no unreasonable delay. The application was allowed in terms of the prayers, with costs to the applicant, and the applicant was given 14 days to file the appeal, failing which the orders would lapse automatically.

Key legal issues

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01

Whether the applicant demonstrated good and sufficient cause for the delay in filing the appeal out of time

Holding

The delay of about 3½ months was explained: the ruling was delivered on March 24, 2022 in the absence of both parties without notice, and the applicant learnt of it only upon being served with a demand letter and decree on June 8, 2022.

Reasoning

The court applied the Salat principles on extension of time. The ruling had been scheduled for March 17, 2022 but was delivered on March 24, 2022 in the absence of the parties, with no evidence of notification of the new date. The explanation for the delay was found satisfactory, and the draft memorandum of appeal was found arguable, satisfying the extension criteria.

p. 7
02

Whether the conditions for stay of execution under Order 42 rule 6(2) were met

Holding

The conditions were satisfied: substantial loss was shown given the threat of execution against the applicant, the application was filed without unreasonable delay, and the applicant indicated willingness to furnish security as directed.

Reasoning

The decree was monetary and the plaintiff's advocates had threatened execution by letter dated June 8, 2022, so an applicant who alleged he was never served with summons could suffer substantial loss. Applying Butt v Rent Restriction Tribunal, the court found no unreasonable delay and granted stay so the intended appeal would not be rendered nugatory.

p. 8

Legal principles established

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  • Time to file an appeal under section 79G may be extended where the appellant shows good and sufficient cause for the delay.
  • Where the applicant was never notified of the delivery of a ruling, the resulting delay in filing an appeal is satisfactorily explained.

Court orders

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  1. 1.Leave granted to file appeal out of time (prayer in terms of the notice of motion dated July 18, 2022)
  2. 2.Stay of execution of the judgment and decree in Kigumo CMCC No 121 of 2021 granted pending the intended appeal
  3. 3.Applicant to file the intended appeal within 14 days, failing which the orders lapse automatically
  4. 4.Costs of the application to the applicant

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 rule 6(2)

Cases cited (6)

  • Kenya Power & Lighting Co Ltd v Rose Anyango & Anr
    [2020] eKLR
  • Mombasa County Government v Kenya Ferry Services & another
    (2019) eKLR
  • Thuita Mwangi v Kenya Airways Ltd
    [2003] eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others
    Application No 16 of 2021 [2014] eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • JMM v PM
    [2018] eKLR
On appeal from
Kigumo Principal Magistrate's Court
Kigumo CMCC No 121 of 2021
Jurisdiction invoked
Section 79G of the Civil Procedure Act (proviso permitting admission of appeal out of time) and Order 42 rule 6(2) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gicharu v Gachui (Miscellaneous Application E016 of 2022) [2023] KEELC 258 (KLR)", Case Analysis (2023). Miscellaneous Application dated July 18, 2022 (arising from Kigumo CMCC No 121 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/258/eng@2023-01-26

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