Pertet & 2 others (Suing as the Administrators of the Estate of Stephen Leiyan Pertet) v Saika & another (Environment and Land Miscellaneous Application 9 of 2019) [2025] KEELC 8080 (KLR)
The bottom line
#A Narok court let late appellants file their appeal out of time and stopped the land judgment from being enforced, but only if they file within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to file an appeal out of time should be granted under Sections 79G and 95 of the Civil Procedure Act
Leave granted; the Applicants' explanation that they learnt of the judgment only upon being served with a demand letter, after the suit had been marked as abated, constituted sufficient reason for the delay
The trial court had upheld a preliminary objection and marked the suit as abated following the deaths of the 1st and 3rd Defendants, yet judgment was subsequently entered against the deceased Defendants. The Applicants learnt of the judgment when threatened with execution via a demand letter from SMS LLP Advocates, by which time the appeal period had lapsed. Guided by the Salat, Wambua, Mutiso and Mathenge principles, the court found these sufficient reasons warranting extension of time.
Whether execution of the trial court judgment should be stayed pending appeal
Stay of execution granted/confirmed pending determination of the intended appeal, since substantial loss to the estates' inheritance was claimed and the appeal was arguable
The trial court had entered judgment vesting the suit property in the Plaintiff, who is at liberty to deal with it under Section 24 of the Land Registration Act. The Applicants claim the property belongs to the estate of Stephen Leyian Pertet (deceased), and a stay prevents substantial loss that cannot be remedied if the appeal succeeds. The court was to confirm the stay already in place depending on the outcome of the extension-of-time prayer, which succeeded.
Whether the application was opposed
The court found the application unopposed as the Respondent filed no response and no submissions were filed by any party
The Respondent's Notice of Preliminary Objection dated 8th November 2019 had earlier succeeded and the application struck out, but that ruling was later reviewed and set aside on the Applicants' application dated 23rd October 2020. The Respondent filed no response to the instant application, and none of the parties filed written submissions despite directions, so the court determined the matter on the pleadings and annexures.
Legal principles established
#- Extension of time is not a right of a party but an equitable remedy available to a deserving party at the court's discretion
- In an application for extension of time, the court considers the length of the delay, reasons for the delay, arguability of the appeal, prejudice to the respondent, and whether the application was brought without undue delay
- An applicant for extension of time must act equitably, as he who seeks equity must do equity
Court orders
#- 1.Leave granted to the Intended Appellants/Applicants to file an appeal out of time against the whole judgment of Hon. T. Gesora (SPM) in Narok CMCC No. 82 of 2007 delivered on 5th February 2019 (prayer No. 3)
- 2.The Memorandum of Appeal annexed to the application deemed duly filed upon payment of the requisite court fees (prayer No. 4)
- 3.Stay of execution of the judgment delivered on 5th February 2019 and the consequent decree in Narok CMCC No. 82 of 2007 granted pending the hearing and determination of the appeal (prayer No. 5)
- 4.The Appellants directed to file the appeal within 30 days from the date of the ruling, failing which the orders granted shall automatically lapse; Appellants directed to prepare the Record of Appeal and file the intended appeal
- 5.Costs of the application to be in the cause
- On appeal from
- Narok Chief Magistrate's Court (trial court)
- Narok CMCC No. 82 of 2007
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act, and Order 22 Rule 25, Order 50 Rules 1 and 5 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pertet & 2 others (Suing as the Administrators of the Estate of Stephen Leiyan Pertet) v Saika & another (Environment and Land Miscellaneous Application 9 of 2019) [2025] KEELC 8080 (KLR)", Case Analysis (2025). Notice of Motion dated 18th October 2019 (arising from Narok CMCC No. 82 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8080/eng@2025-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.