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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 3936 (KLR)

Macharia v Gakunju (Environment & Land Miscellaneous Case E023 of 2024) [2025] KEELC 3936 (KLR)

High Court of Kenya
23 May 2025
JOJ.O. Olola
1,336 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court gave a litigant a second chance to appeal after his lawyer filed in the wrong court, ruling clients shouldn't pay for advocates' mistakes.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 18th September 2024 by John Njagi Macharia (applicant) seeking leave to appeal out of time against a Ruling delivered on 30th May 2024 by Hon. Damacline Nyakundi in Mukurwe-ini Misc Civil App 2 of 2023 (Jagi Gakunju v John Njagi Macharia), arising from Nyeri Business Premises Rent Tribunal Case No. 26 of 2019, and that such leave operate as a stay of proceedings. The applicant explained that after the Ruling he filed an appeal in the High Court (Nyeri Civil Appeal No. E035 of 2024), which Justice Kizito Magare struck out on 27th June 2024 because a dispute under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 has no place in the High Court under Article 165(3) of the Constitution. By then time for filing in the correct forum had run out. The respondent opposed, arguing the application was an abuse of process, the intended appeal was academic since the Magistrates' Court merely adopted the Tribunal's award under section 14(1) of Cap 301 and became functus officio, and nothing remained to be stayed. J.O. Olola J applied the Omar Shurie principles for extension of time: the delay was short and the initial appeal was filed within the section 79G period; the applicant, a layman, should not suffer for his advocate's error in filing in the wrong forum, per CFC Stanbic and Lee G Muthoga. The court allowed the Motion in terms of prayer (b), giving the applicant 21 days to lodge the appeal. Costs of the application were to abide the outcome of the appeal. No stay was granted.

Key legal issues

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Whether to extend time for filing an appeal where the earlier appeal was filed in the wrong forum within time

Holding

Extension of time granted because the appeal, though lodged in the wrong forum (High Court), was filed within the Section 79G period and the fault lay with counsel

Reasoning

The court applied the Omar Shurie principles: length of delay, reason for delay, chances of success and prejudice to the respondent. The original appeal was filed 20 days after the Ruling, within time, but was struck out because a dispute under Cap 301 cannot be entertained by the High Court. Applying CFC Stanbic/Lee G Muthoga, the layman applicant should not suffer for his advocate's mistake.

p. 4

Legal principles established

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  • A litigant should not suffer because of the advocate's oversight

Court orders

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  1. 1.The Motion dated 18th September 2024 is allowed in terms of prayer (b): leave granted to the Applicant to appeal out of time against the Ruling of 30th May 2024 in Mukurwe-ini Misc Civil App 2 of 2023
  2. 2.The Applicant has 21 days from the date of the ruling within which to lodge the Appeal
  3. 3.The costs of the application shall abide the outcome of the Appeal

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Landlord and Tenant (Shops, Hotel and Catering Establishments) ActCap 301; Section 14(1)
  • Constitution of Kenya, 2010Article 165(3)

Cases cited (3)

  • Omar Shurie vs Marian Rashe Yafar
    Civil Application No. 107 of 2020 (UR)
  • CFC Stanbic Limited vs John Maina Githaiga & Another
    (2013) eKLR
  • Lee G Muthoga v Habib Zurich Finance (K) Ltd & Another
    Civil Application No. NAI 236 of 2009
Jurisdiction invoked
Section 79G of the Civil Procedure Act (extension of time to appeal)

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, "Macharia v Gakunju (Environment & Land Miscellaneous Case E023 of 2024) [2025] KEELC 3936 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3936/eng@2025-05-23

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