Wairimu & another v Mwangi (Environment & Land Miscellaneous Case E287 of 2024) [2025] KEELC 3559 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether leave to appeal out of time should be granted
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
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.
Whether stay of execution of the trial court's judgment should issue
Stay granted subject to conditions: filing of the appeal within 14 days and deposit of Kshs 80,000 as security
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.
Legal principles established
#- 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
#- 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.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.Stay of execution of the judgment issued on 8/3/24 granted on those terms
- 4.In default of (a) and (b), the orders granted shall stand spent
- 5.Costs of the application awarded to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.