Munyithya v Bandas & Grill Limited (Miscellaneous Application E124 of 2021) [2023] KEELRC 2652 (KLR)
The bottom line
#A Kenyan court refused to excuse a four-month delay in filing an appeal because the applicant showed no good reason and had not diligently prepared it.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to file an appeal under section 79G
The applicant failed to demonstrate good and sufficient cause for the four-month delay; the application was dismissed.
The Court noted the application was filed four months after judgment, the applicant did not deny receipt of the judgment notice served a month before delivery, and no steps to obtain certified proceedings or judgment were deponed to or exhibited. The Court relied on Charles N. Ngugi v ASL Credit Limited and Mugo & Others v Wanjiru on the requirement that the appeal be filed before or with the extension application.
Stay of execution pending intended appeal
Stay was refused because the conditions for granting stay, including good faith in pursuing the appeal, were not satisfied.
The Court held that stay pending appeal requires the applicant to have diligently taken steps towards lodging the appeal. Since the applicant had neither filed a memorandum of appeal nor requested proceedings and judgment, and had delayed inordinately, the Court was not satisfied that the requisites for stay were met.
Legal principles established
#- Under section 79G, an appeal out of time may be admitted only where the applicant shows good and sufficient cause, and the intended appeal ought to have been filed before or together with the application for extension of time.
Court orders
#- 1.The application dated 6/7/2021 is dismissed with costs
- On appeal from
- null (decision sought to be appealed was from a subordinate court in Nairobi CMEL No. 389 of 2018 delivered by Hon. Kagoni; the present ruling is on a notice of motion, not an appeal)
- Nairobi CMEL No. 389 of 2018
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (extension of time to appeal out of time) and the Court's inherent power to grant stay of execution pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyithya v Bandas & Grill Limited (Miscellaneous Application E124 of 2021) [2023] KEELRC 2652 (KLR)", Case Analysis (2023). Notice of Motion dated 6/7/2021 (arising from Nairobi CMEL No. 389 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2652/eng@2023-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.