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ELCAllowedNakuru CM ELC No. 365 of 2018 (application dated 7th December, 2022)· [2023] KEELC 642 (KLR)
Wanjiru v Korir (Environment and Land Miscellaneous Application 52 of 2022) [2023] KEELC 642 (KLR)
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#What this practically means
#Executive summary
#By a notice of motion dated 7th December, 2022, Betty C. Wanjiru Murage, the plaintiff in Nakuru CM ELC No. 365 of 2018 before Hon. A. E. A Nyaloti, Chief Resident Magistrate, sought enlargement of time to file an appeal against the judgment and decree delivered on 27th October, 2022. She explained that her advocates, Ms. Elizabeth Wangare & Company Advocates, failed to promptly inform her of the judgment; she learned of it on 30th November, 2022, received a copy on 1st December, 2022, by which time the 30-day period under Section 79G of the Civil Procedure Act had lapsed on 26th November, 2022. She argued the delay was not inordinate and that no prejudice would be suffered since the Respondent, Wesley Kiprotich Korir, never participated in the lower court proceedings. The Respondent filed no response and neither party filed submissions. Identifying the sole issue as whether extension of time should be granted, A O Ombwayo J applied Section 79G and the Supreme Court's principles in County Executive of Kisumu (drawing on the Salat case), weighing the length of and reason for delay, absence of prejudice, and promptitude. Finding the delay of about one month and two weeks not inordinate, and noting that a four-month delay had been excused in Almas Hauliers, the court allowed the application, enlarged time, and directed that the appeal be filed within 30 days, with each party bearing their own costs of the application. Ruling delivered virtually at Nakuru on 9th February 2023.
Key legal issues
#01
Whether the Applicant established sufficient cause and an excusable delay to be granted enlargement of time to appeal under Section 79G of the Civil Procedure Act
Holding
The application was allowed; the delay of about one month and two weeks was not inordinate, and the applicant acted diligently upon learning of the judgment through her advocate's failure to inform her promptly.
Reasoning
Relying on Section 79G and the Supreme Court's guidance in County Executive of Kisumu, the court considered the length of and reason for the delay, absence of prejudice, and the applicant's prompt action once notified. Comparing Almas Hauliers where four months' delay was held not inordinate, the court found the delay excusable and extended time to file the appeal within 30 days.
p. 3
Legal principles established
#- Extension of time is an equitable remedy available to a deserving party at the discretion of the court, and the applicant bears the burden of explaining the delay to the court's satisfaction.
- A delay of roughly one month and two weeks is not so inordinate as to warrant denial of leave to appeal out of time.
Court orders
#- 1.Time for filing the appeal is enlarged
- 2.The Applicant to file an appeal against the judgment and decree of Hon. A. E. A Nyaloti, Chief Resident Magistrate, delivered on 27th October, 2022 in Nakuru CM ELC No. 365 of 2018 within 30 days
- 3.Each party shall bear their costs in the application
- On appeal from
- Chief Magistrate's Court, Nakuru
- Nakuru CM ELC No. 365 of 2018
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjiru v Korir (Environment and Land Miscellaneous Application 52 of 2022) [2023] KEELC 642 (KLR)", Case Analysis (2023). Nakuru CM ELC No. 365 of 2018 (application dated 7th December, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/642/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.