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ELCDismissedNot stated in the excerpt· [2024] KEELC 953 (KLR)

Application for stay of execution and extension of time to file appeal (Applicant v Respondent)

High Court of Kenya
27 February 2024
NMN.A. Matheka
1,257 words in judgment
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The bottom line

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The High Court in Mombasa refused a litigant's late appeal and stay of execution because she waited too long without a good reason.

What this practically means

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Executive summary

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The Applicant applied by notice of motion dated August 10, 2023, seeking certification as urgent, a stay of execution of the judgment and decree issued on January 12, 2023, and leave to file a Memorandum of Appeal out of time, citing Sections 1A, 1B, 3, 3A, 40, 46 and 95 of the Civil Procedure Act, Orders 42, 50 and 51 of the Civil Procedure Rules, 2010 and section 7 of Cap 9. The application was supported by grounds that the trial court dismissed the Applicant's suit on January 12, 2023; that the Applicant was sick and bedridden at the time and her advocate could not reach her because the contact she had provided was unavailable; that she only visited the advocate's office on August 8, 2023; and that a sum of money deposited in a joint interest account was at risk if execution proceeded. The court identified Section 79G of the Civil Procedure Act as the operative provision, requiring an appeal to be filed within thirty days unless the appellant shows good and sufficient cause. It applied Mugo & others v Wanjiru, holding that the intended appeal should be filed before or with the extension application, and the factors in Edith Gichungu Koine and Nicholas Kiptoo Arap Korir Salat (delay, reasons, prejudice, arguability, undue delay). Weighing these, the court found the excuse of illness and lost contact casual and unacceptable, held that the Applicant was guilty of inordinate delay, that the application was an afterthought, and that the draft memorandum disclosed no arguable appeal. The application was dismissed with no orders as to costs on February 27, 2024 at Mombasa.

Key legal issues

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01

Extension of time under Section 79G of the Civil Procedure Act

Holding

The application was not merited: the delay was inordinate and unexplained, the excuse casual, and there was no arguable appeal

Reasoning

Section 79G requires an appeal to be filed within thirty days unless the appellant shows good and sufficient cause. The court applied the factors in Koine and Salat (length of delay, reasons, prejudice, arguability). The Applicant's explanation - illness and lack of communication with her advocate for over seven months - was found casual and unacceptable, the delay inordinate, and the draft memorandum of appeal disclosed no arguable appeal. The application was dismissed with no orders as to costs.

p. 3

Legal principles established

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  • An intended appeal ought to be filed before or together with an application seeking leave to extend time
  • Extension of time is an equitable remedy available at the court's discretion to a deserving party

Court orders

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  1. 1.The application dated August 10, 2023 is dismissed
  2. 2.No orders as to costs
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 40, 46 and 95 of the Civil Procedure Act Cap 21; Order 42 rule 6, Order 50 rule 6, Order 51 Civil Procedure Rules, 2010; Section 79G Civil Procedure Act

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, "Application for stay of execution and extension of time to file appeal (Applicant v Respondent)", Case Analysis (2024). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/953/eng@2024-02-27

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