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ELCPartially AllowedNot stated in judgment (Miscellaneous Application seeking extension of time and stay, Tigania PMC ELC No. 101 of 2015 appeal)· [2024] KEELC 5740 (KLR)

Joel v Baariu & 3 others (Miscellaneous Application E019 of 2024) [2024] KEELC 5740 (KLR)

High Court of Kenya
31 July 2024
CNC K Nzili
938 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Meru let an elderly litigant file her appeal late but refused to stay execution because dismissing her case created no order to enforce.

What this practically means

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Executive summary

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The applicant, Eunice Joel alias Eunice Ncece Ndubai, sought leave to lodge an appeal out of time against a judgment delivered on 5 March 2024 in Tigania PMC ELC No. 101 of 2015, which dismissed her suit with no order as to costs, and sought a stay of execution of the decree. Her application was filed on 5 June 2024, a delay of three months. She attributed the delay to the court registry's failure to supply typed proceedings and judgment timeously, her old age, illiteracy, economic hardship, and inability to contact her former lawyers on record. Nzili J set out the settled principles under Section 79G of the Civil Procedure Act: extension of time is a discretionary, equitable remedy considering the length of the delay, prejudice to the respondent and the interests of justice. Citing Salat v IEBC, Leo Sila Mutiso, and other authorities, the court held that the applicant had explained the delay to its satisfaction and that her draft memorandum of appeal disclosed arguable points. However, on the stay of execution, the court found that the decree dismissing the suit was a negative order incapable of being stayed, following Catherine Njeri Maranga, Kaushik Panchamatia and West College of Arts. The court extended time to file the intended appeal, directed that the memorandum of appeal be filed and served within 14 days, and ordered that costs abide the intended appeal.

Key legal issues

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01

Extension of time to appeal out of time

Holding

The applicant adequately explained the delay of three months (illiteracy, old age, economic hardship, lack of communication with former lawyers) and her draft memorandum disclosed arguable points

Reasoning

Section 79G permits admission of out-of-time appeals for sufficient reasons. The court weighs length of delay, prejudice to the respondent and interests of justice. The respondent did not deny economic distress. The applicant laid basis for the delay and attached a draft memorandum disclosing arguable grounds, so extension was justified judicially, not on sympathy.

p. 2
02

Stay of execution

Holding

Refused because the decree (dismissal of the suit) is a negative order incapable of being stayed

Reasoning

The trial court dismissed the applicant's suit with no order as to costs. Following precedent, a negative order that does not require the applicant to do anything cannot be stayed; stay applies only to positive orders enforceable by execution.

p. 2

Legal principles established

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  • Extension of time is discretionary and equitable, considering length of delay, prejudice and interests of justice
  • A negative order such as dismissal of a suit cannot be stayed

Court orders

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  1. 1.Time extended to file the intended appeal
  2. 2.The memorandum of appeal to be filed and served within 14 days from the date of the ruling
  3. 3.Costs to abide by the intended appeal

Authorities

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Legislation

  • Civil Procedure ActSection 79G

Cases cited (12)

  • Nicholas Arap Salat v Independent Electoral and Boundaries Commission & others
    (2014) eKLR
  • Murere v Nyongesa
    Civil Appeal (Application) E150 of 2023 (2024) KECA 130 (KLR) (9th February 2024) (Ruling)
  • Leo Sila Mutiso v Hellen Wangari Mwangi
    (1999) 2 EA 231
  • Housing Finance Company of Kenya v Sharok Kher Mohamed & another
    (2015) eKLR
  • James Wangalwa v Agnes Cheseto
    (2012) eKLR
  • Arun C. Sharma v Ashana Raikundalia & 5 others
    (2015) eKLR
  • Amina Karama v Njagi Gachagua & others
    (2020) eKLR
  • Nicholas Kipkorir Arap Salat v IEBC
    (2014) eKLR
  • Paul Wanjohi Mathenge v Duncan Gichane Mathenge
    (2013) eKLR
  • Catherine Njeri Maranga v Serah Chege & another
    (2017) eKLR
  • Kaushik Panchamatia & 3 others v Prime Bank Ltd & another
    (2020) eKLR
  • West College of Arts & Applied Sciences v E.P Oranga & others
    (1976) KLR 63
On appeal from
Principal Magistrate's Court at Tigania
ELC No. 101 of 2015
Jurisdiction invoked
Section 79G 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, "Joel v Baariu & 3 others (Miscellaneous Application E019 of 2024) [2024] KEELC 5740 (KLR)", Case Analysis (2024). Not stated in judgment (Miscellaneous Application seeking extension of time and stay, Tigania PMC ELC No. 101 of 2015 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5740/eng@2024-07-31

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