Macharia v Ngati (sued as the administrator of the Estate of Rose Munyiva Nzioka) (Environment and Land Civil Miscellaneous Application E038 of 2022) [2023] KEELC 563 (KLR)
The bottom line
#The High Court at Kajiado refused a businessman's seven-month-late appeal because he couldn't prove his lawyer caused the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated good and sufficient cause for the delay in filing the appeal
The delay of about seven months was inordinate and inexcusable; the claim that the former advocate was at fault was unproven.
The court held that the applicant's assertion that he instructed his then advocate to lodge an appeal was unsupported: there was no affidavit from the previous counsel and no evidence of an application for certified copies of judgment and proceedings. Following the Salat and Telkom Kenya principles, extension of time is an equitable remedy available only to a deserving party, and the explanation offered was not convincing.
Whether the respondent would suffer prejudice if leave were granted
Great prejudice would be occasioned to the respondent, who had waited to enjoy the fruits of his judgment and had already commenced execution.
The court accepted the respondent's submission that the application was lodged only after execution steps had begun, describing the applicant as jostled into action by the commencement of execution. The decree included a permanent injunction, vacation of the suit property and Kshs 300,000 general damages for trespass, which the respondent was entitled to enjoy without further delay.
Legal principles established
#- An appeal filed out of time under section 79G can only be admitted where the applicant demonstrates good and sufficient cause; delay must be explained.
Court orders
#- 1.The notice of motion dated September 22, 2022 is dismissed with costs to the respondent.
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act and Order 50 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Macharia v Ngati (sued as the administrator of the Estate of Rose Munyiva Nzioka) (Environment and Land Civil Miscellaneous Application E038 of 2022) [2023] KEELC 563 (KLR)", Case Analysis (2023). Notice of motion dated September 22, 2022 (Kajiado High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/563/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.