Kiniaru & another (As administrators of the Estate of Simon Kiniaru Gitau) v Githinji & 2 others; Mihango (Interested Party) (Environment and Land Case Application E047 of 2024) [2025] KEELC 3765 (KLR)

The Court applied the settled Order 42 rule 6(2) criteria — reasonable delay, substantial loss and security — reinforced by the overriding objective in sections 1A and 1B of the Civil Procedure Act. It accepted the applicants' explanation that the estate had no notice of the ex parte judgment against a deceased defendant, noted the memorandum of appeal raised arguable points, and balanced the decree holder's right to the fruits of judgment against the appellants' right of appeal. Security was left to the Court's discretion; a stay was granted pending the intended appeal.

Applying Section 79G and the principles in Leo Sila Mutiso and Nicholas Kiptoo Korir arap Salat, the Court weighed length and reason for delay, arguability and prejudice. Although three years was inordinate and prejudiced the respondent, the applicants' explanation — ignorance of the judgment, prior advocates' failure, and the need for a limited grant ad litem — was plausible. The intended appeal was held arguable, and the ex parte nature of the judgment weighed in favour of substantive rather than procedural justice.

While acknowledging the general rule in Section 27 of the Civil Procedure Act that costs follow the event per Hussein Janmohamed & Sons, the Court in its discretion ordered costs of the motion to abide the outcome of the intended appeal, since the substantive dispute remained pending before the appellate court.