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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 8/12/24 arising from Milimani Civil Suit No. 535 of 2003)· [2025] KEELC 3559 (KLR)

Wairimu & another v Mwangi (Environment & Land Miscellaneous Case E287 of 2024) [2025] KEELC 3559 (KLR)

High Court of Kenya
13 February 2025
3,441 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's High Court gave a delayed appellant 14 days to file her appeal, but only after depositing Kshs 80,000 as security for costs.

What this practically means

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Executive summary

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This ruling by the High Court (J. G. Kemei, J) determined a Notice of Motion dated 8/12/24 by Lucy Wairimu and another, defendants in Milimani CMELC Civil Suit No. 535 of 2003, in which Angelus Maina Mwangi had obtained judgment on 28/3/24, including eviction orders, mesne profits of Kshs 3.6 million with interest. The applicants sought extension of time to lodge an appeal, stay of execution, and setting aside of the judgment pending hearing. The Respondent opposed, contending the court lacked jurisdiction absent a filed memorandum of appeal, that only an unsigned draft was on record, that the delay of about 257 days was inordinate, and that the applicants were forum shopping having already enjoyed stay orders that were discharged on 7/11/24 when their earlier application was dismissed. The court framed two issues: extension of time and stay of execution. Applying Section 79G and 95 of the Civil Procedure Act and the Leo Sila Mutiso and County Executive of Kisumu principles, it held the delay was not inordinate, as the applicant acted promptly after learning on 7/11/24 that her previous advocate had filed only a stay/abatement application and not an appeal; the unsigned draft memorandum was sufficient notice of the grounds at this interlocutory stage. On stay, applying Order 42 Rule 6 and Butt v Rent Restriction Tribunal, the court found eviction before appeal would render it nugatory. The court granted leave of 14 days to file the memorandum and record of appeal with submissions, stay of execution conditioned on deposit of Kshs 80,000 into a joint interest account as security, default to lapse the orders, and awarded costs of the application to the Respondent.

Key legal issues

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01

Whether leave to appeal out of time should be granted

Holding

Leave granted; the delay of about 8 months was not inordinate given the applicant acted promptly upon discovering her previous advocate had not filed an appeal

Reasoning

The court applied the Leo Sila Mutiso and County Executive of Kisumu criteria: length of delay, reasons, chances of success and prejudice. The applicant attributed the delay to her previous advocate's failure to file an appeal, having filed only a stay/abatement application. Upon learning this on 7/11/24, she changed counsel and filed this application on 8/12/24, which the court found to be within reasonable time. An unsigned draft memorandum was held sufficient to notify the parties of the grounds at this stage.

p. 5
02

Whether stay of execution of the trial court's judgment should issue

Holding

Stay granted subject to conditions: filing of the appeal within 14 days and deposit of Kshs 80,000 as security

Reasoning

Applying Order 42 Rule 6 and the Butt v Rent Restriction Tribunal principles, the court found that without stay the Respondent would evict the applicants before the appeal is heard, rendering it nugatory. The court balanced the applicant's right of appeal against the Respondent's entitlement to the fruits of judgment by attaching conditions of security and a strict filing timeline, with the orders lapsing on default.

p. 7

Legal principles established

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  • The decision whether to extend time for appealing is discretionary, considering the length of the delay, reasons for the delay, chances of the appeal succeeding, and prejudice to the Respondent
  • The burden of proving substantial loss for purposes of stay of execution rests on the Applicant

Court orders

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  1. 1.Leave granted to the Applicant to file the Memorandum of Appeal, Record of Appeal and written submissions within fourteen (14) days from delivery of the Ruling
  2. 2.Applicant to deposit Kshs 80,000/- within fourteen (14) days into a joint fixed account in the names of rival parties' counsels as security for costs pending determination of the appeal
  3. 3.Stay of execution of the judgment issued on 8/3/24 granted on those terms
  4. 4.In default of (a) and (b), the orders granted shall stand spent
  5. 5.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Section 3A
  • Civil Procedure Act (Cap. 21)Section 63(e)
  • Civil Procedure Act (Cap. 21)Section 79G
  • Civil Procedure Act (Cap. 21)Section 95
  • Civil Procedure Rules, 2010Order 50 Rule 5
  • Civil Procedure Rules, 2010Order 42 Rule 1
  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2)
  • Oaths and Statutory Declarations RulesRule 9
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (10)

  • Fauzi Said Ali & 3 Others -vs- Said Ahmed Ali & Another
    [2019] eKLR
  • County Government of Narok & Another –vs- Mwavali
    (Civil Application E072 of 2023) [2024] KECA 390 (KLR) (12 April 2024) (Ruling)
  • Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi
    Nairobi Civil Application No. 251 of 1997
  • County Executive of Kisumu vs. County Government of Kisumu & 8 Others
    (2017) eKLR
  • Mwangi S. Kimenyi –vs- Attorney General and Another
    (2014) eKLR
  • Allen –vs- Alfred McAlphine & Sons
    [1968] 1 All ER 543
  • Agip (Kenya) Limited –vs- Highlands Tyres Limited
    [2001] KLR 630
  • Sagoo –vs- Bahari
    [1990] KLR 456
  • Butt –vs- Rent Restriction Tribunal
    {1979) eKLR
  • RWW vs. EKW
    (2019) eKLR
On appeal from
Chief Magistrate's Court at Milimani
Civil Suit No. 535 of 2003
Jurisdiction invoked
Sections 3A, 63(e), 79G and 95 of the Civil Procedure Act (Cap. 21); Order 50 Rule 5 of the Civil Procedure Rules, 2010

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, "Wairimu & another v Mwangi (Environment & Land Miscellaneous Case E287 of 2024) [2025] KEELC 3559 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 8/12/24 arising from Milimani Civil Suit No. 535 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3559/eng@2025-02-13

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