Esther Njambi t/a Elister Enterprises v Cornelius Wanjala Makona [2021] KEELRC 1254 (KLR)
The bottom line
#A Nakuru court let a late appeal proceed because Covid-19 caused the delay, but only if the judgment money is first deposited.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to appeal under section 79G of the Civil Procedure Act
Leave to appeal out of time granted because the delay was explained by Covid-19 infection of the applicant's counsel's staff and closure of the court premises
The court found the applicant had explained the reasons preventing the timely filing of the appeal: staff at the advocate's firm tested positive for Covid-19 necessitating office closure, and the Nakuru law courts closed for two weeks in April 2021. The court took judicial awareness of these facts, noting even court staff had tested positive and the premises had closed. On that basis it concluded the failure to file within time could have emanated from valid reasons and exercised its discretion to grant leave.
Stay of execution pending appeal and security for the decretal sum
Stay granted conditional on deposit of the entire decretal sum in an interest earning account in the joint names of the parties' advocates within 14 days
Balancing the applicant's interest in having her appeal heard against the respondent's entitlement to the fruits of his judgment, the court allowed stay pending the hearing of the appeal but conditioned it on the deposit of the entire decretal sum in an interest earning account in the joint names of counsel on record within 14 days, with execution to proceed in default.
Legal principles established
#- A party seeking enlargement of time must provide valid reasons for the delay; where the delay is occasioned by valid reasons such as the Covid-19 pandemic and court closure, leave to appeal out of time may be granted
Court orders
#- 1.Leave granted to the applicant to file the appeal out of time, and in any event not more than 7 days
- 2.Stay of execution of the judgment/decree pending hearing of the appeal, conditional upon deposit of the entire decretal sum in an interest earning account held in the joint names of counsel on record within 14 days
- 3.In default of the deposit, execution to proceed
- 4.Costs to abide the outcome of the appeal
- On appeal from
- Chief Magistrates' Court, Nakuru
- CMCC No. 137 of 2017
- Jurisdiction invoked
- Section 79G, 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Njambi t/a Elister Enterprises v Cornelius Wanjala Makona [2021] KEELRC 1254 (KLR)", Case Analysis (2021). Nakuru CMCC No. 137 of 2017 (application dated 19th April 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1254/eng@2021-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.