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ELCDismissed· [2025] KEELC 4548 (KLR)

Weaver Bird Garment Manufacturers Ltd v Muthoni & another (Environment and Land Miscellaneous Application E279 of 2024) [2025] KEELC 4548 (KLR)

High Court of Kenya
18 June 2025
MCMbogo C.G.
1,713 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant company moved the High Court by notice of motion dated 8th January 2025 seeking leave to appeal out of time against a judgment in Milimani Small Claims Court Commercial Claim No. SCCCOMM/479 of 2021, and a stay of execution pending the intended appeal. It explained that a director had been served with the pleadings via whatsapp on 15th August 2021, but the service lacked a claim number, making it difficult to respond; the applicant only learned of the matter at the execution stage almost three years later. It also asserted that the small claims court lacked jurisdiction over a tenant-landlord dispute under Cap 301, and that part of the delay was occasioned by a similar application before the High Court. The 1st respondent's replying affidavit and submissions were found unresponsive to the application and were disregarded, leaving the application effectively undefended; the court nonetheless examined whether the discretion under Sections 79G and 95 of the Civil Procedure Act should be exercised. Applying the Mutiso v Mwangi principles as restated in Thuita Mwangi v Kenya Airways and the Salat v IEBC factors, the court held that the explanation for the nearly three-year delay was unsatisfactory: the applicant, having been served, made no follow-up - no phone call or registry visit - and went to slumber. The court declined to aid an indolent party and found it unnecessary to assess the arguability of the intended appeal. The motion was dismissed with no orders as to costs.

Key legal issues

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01

Whether the applicant gave good and sufficient cause under Section 79G of the Civil Procedure Act for filing the appeal almost three years late

Holding

No - service via whatsapp of pleadings without a case number did not excuse the failure to follow up on the matter; the delay was not satisfactorily explained

Reasoning

Applying the Mutiso v Mwangi principles as restated in Thuita Mwangi v Kenya Airways and the Salat v IEBC factors, the court found the length of delay (nearly three years) inordinate and the explanation unsatisfactory. The applicant was served on 15th August 2021 and admittedly did nothing - no phone call or visit to the registry - until it heard of impending execution. The court will not aid an indolent party.

p. 4
02

Whether the court should determine the arguability of the intended appeal

Holding

It was unnecessary, leave having been refused for want of sufficient cause

Reasoning

Having found no good and sufficient cause for the delay, the discretionary enquiry ended there; the court declined to go into the merits of the proposed grounds of appeal.

p. 4
03

The procedural confusion in the 1st respondent's response

Holding

The replying affidavit and submissions were unresponsive to the application and were disregarded, leaving the application effectively undefended - but the court still had to satisfy itself on the merits

Reasoning

The replying affidavit by Mshindi Elijah responded to an earlier affidavit of 20th September 2024 rather than the instant application and predated the notice of appointment. The written submissions carried the same defect. The court nonetheless examined whether the applicant had made out a claim warranting the exercise of discretion.

p. 2

Legal principles established

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  • The decision to extend time for appealing is discretionary, considering the length of and reason for delay, the chances of the appeal succeeding, and prejudice to the respondent
  • Extension of time is an equitable remedy available only to a deserving party; the applicant bears the burden of explaining the delay to the satisfaction of the court
  • A party served with pleadings must make reasonable follow-up; wilful inattention amounts to indolence which the court will not assist

Court orders

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  1. 1.The notice of motion dated 8th January 2025 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 165(6)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Cap 301referred to as governing tenancy relationships

Cases cited (5)

  • Saitabau v Republic
    [2025] KECA 384 (KLR)
  • Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] KESC 12 (KLR)
  • Thuita Mwangi versus Kenya Airways
    [2003] eKLR
  • Mutiso v Mwangi
    [1997] KLR 630
  • Nicholas Kiptoo Korir Arap Salat versus IEBC & 7 Others
    [2014] eKLR
Jurisdiction invoked
Articles 162(2)(b) and 165(6) of the Constitution of Kenya and Order 51 Rule 1 of the Civil Procedure Rules; Sections 79G and 95 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, "Weaver Bird Garment Manufacturers Ltd v Muthoni & another (Environment and Land Miscellaneous Application E279 of 2024) [2025] KEELC 4548 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4548/eng@2025-06-18

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