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ELCDismissedNot stated in judgment· [2024] KEELC 4583 (KLR)

Irungu v Wairimu (Environment and Land Case E041 of 2023) [2024] KEELC 4583 (KLR)

Environment and Land Court
6 June 2024
2,938 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to excuse a six-month delay in filing a land appeal, ruling that blaming your lawyer is not enough to save your case.

What this practically means

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Executive summary

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The Appellant/Applicant, Eric Muiyoro Irungu Njuguna, moved the Environment and Land Court at Thika by Notice of Motion dated 18/9/2023 under Sections 29 and 30 of the Physical Planning Act and Sections 1A and 3A of the Civil Procedure Act, seeking leave to file an appeal out of time against proceedings in Ruiru SPMC MCL&E Case No. E025 of 2021 and a stay of execution of the ex parte judgment delivered on 13th October 2022. He blamed his former advocates for failing to inform him of the hearing and judgment, claiming he only learnt of the adverse orders when auctioneers attended his house. The Respondent opposed, asserting the Applicant was aware of the proceedings, having participated through advocates, and had already unsuccessfully sought to set aside the judgment by an application dismissed on 23/3/2023. The court framed three issues: entitlement to leave to appeal out of time, entitlement to stay of execution, and costs. Applying Section 79G and Section 95 of the Civil Procedure Act and the Salat and Wambua principles, the court held the applicant failed to explain a six-month delay following service of an eviction notice on 24/3/2023, and that blaming advocates without evidence was insufficient. On stay, the court noted contradictions between the order sought to be stayed and the memorandum of appeal, and found no substantial loss demonstrated, no timely filing, and no security offered. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Leave to appeal out of time

Holding

Refused; the applicant did not give good and sufficient cause for the six-month delay

Reasoning

Section 79G CPC requires appeals from subordinate courts within thirty days unless the appellant shows good and sufficient cause. Applying the Salat and Wambua principles, the court found the applicant learnt of the adverse orders when served with an eviction notice on 24/3/2023 yet waited until 22/9/2023 to act. Unproven allegations of advocate negligence, and the applicant's own inaction after learning of the orders, did not satisfy the burden.

p. 4
02

Stay of execution pending appeal

Holding

Refused; none of the Order 42 rule 6 conditions was met

Reasoning

The court noted a contradiction: the applicant sought stay of the 13/10/2022 judgment but drafted a memorandum of appeal against the 23/3/2023 ruling, casting doubt on which order he wished to stay. On the merits, no substantial loss was specified, the application was filed after inordinate delay, and no offer of security was made, so all three Order 42 rule 6(2) conditions failed.

p. 5

Legal principles established

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  • For stay of execution pending appeal, the applicant must establish substantial loss, timely filing and furnish security
  • The process of execution on its own does not amount to substantial loss
  • Solely blaming one's advocate is not enough to unlock the court's discretionary favour for extension of time

Court orders

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  1. 1.The Applicant's Notice of Motion dated 18/9/2023 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Physical Planning ActSections 29 and 30
  • Civil Procedure ActSections 1A, 3A, 79G, 95
  • Civil Procedure RulesOrder 42 rule 6; Order 45
  • Constitution of KenyaArticles 162(2) and 50

Cases cited (10)

  • Paul Musili Wambua v Attorney General & 2 Others
    [2015] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral And Boundaries Commission & 7 Others
    [2014] eKLR
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Sakiri v Anyumba
    (Civil Application E170 of 2021) [2022] KECA 521 (KLR)
  • Habo Agencies Limited v Wilfred Odhiambo Musingo
    [2015] eKLR
  • Carla v Marelli & 2 Others
    [2023] KECA 1385 KLR
  • Daniel Kimani Njihia v Francis Mwangi & Another
    [2015] eKLR
  • The Chairman Board of Governors Highway Secondary School v William Mmosi Moi
    Civil Application No. 277 of 2005
  • James Wangalwa & Anor. v Agnes Naliaka Cheseto
    [2012] eKLR
  • Machira T/A Machira & Company Advocates v East African Standard (No 2)
    2002 2 KLR
On appeal from
Senior Principal Magistrate's Court at Ruiru
MCL&E Case No. E025 of 2021
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya; Sections 29 and 30 of the Physical Planning Act; Sections 1A and 3A of the 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, "Irungu v Wairimu (Environment and Land Case E041 of 2023) [2024] KEELC 4583 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4583/eng@2024-06-06

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