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ELRCDismissedNotice of motion dated 24th March, 2023 (Nakuru High Court; appeal from Nakuru CMC ELR Cause No. 33 of 2020)· [2023] KEELRC 2752 (KLR)

ARN Security & Training Services v Eregayi (Miscellaneous Application E017 of 2023) [2023] KEELRC 2752 (KLR)

High Court of Kenya
2 November 2023
DNDavid Nderitu
2,661 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 refused to excuse a missed appeal deadline, holding that political campaigns are no justification for delay in court cases.

What this practically means

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Executive summary

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This was an application, decided in the first instance by the High Court at Nakuru (David Nderitu, J), seeking certification as urgent, extension of time to file an appeal against the judgment of Y.I. Khatambi (PM) delivered on 11th February, 2022 in Nakuru CMC ELR Cause No. 33 of 2020, stay of execution of that judgment, and deeming of a draft memorandum of appeal as properly filed. The application was supported by an affidavit of Anthony Rebo Ngure, a director of the applicant, who attributed the delay to his involvement in 2022 political campaigns. The respondent opposed, pointing out that the applicant had enjoyed 30 days' stay after judgment, had filed a similar leave application in the lower court which was dismissed on 8th November, 2022, and had then waited some four months; that execution had already commenced with proclamation of attachment; and that no security or triable issues were offered. The court framed three issues: whether leave to appeal out of time should be granted, whether stay should issue, and costs. Applying Section 79G of the Civil Procedure Act and the established factors in Mutiso v Mwangi and Salat v IEBC, the court held the delay unexplained, unreasonable, inordinate and in bad faith, rejecting the political-campaigns excuse as hollow and unsupported, noting elections had long passed by the time of the earlier dismissal. The court found it would be contradictory to grant stay once extension was refused, since the stay would be pending nothing. The entire application was dismissed with costs to the respondent, assessed at Kshs.20,000/=, all inclusive, in a ruling delivered virtually at Nakuru on 2nd November, 2023.

Key legal issues

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01

Whether the applicant established good and sufficient cause under Section 79G to warrant extension of time

Holding

No: the delay was inordinate, unexplained and in bad faith; the political-campaigns excuse was hollow and the earlier dismissal in the lower court was not followed by prompt action

Reasoning

The court applied the Mutiso/Salat factors. Judgment was delivered on 11 February 2022; the applicant took no appeal within the 30 days' stay, filed a similar application in the lower court which was dismissed on 8 November 2022, then waited about four months to file this application. The director's claimed political campaigns were unsupported and did not explain why no other director or officer could instruct counsel.

p. 5
02

Whether stay of execution should issue pending the intended appeal

Holding

Refused, as stay would be pending nothing once extension of time is denied

Reasoning

Stay of execution is consequential on the grant of leave to appeal out of time. Since the extension was refused, there would be no appeal for the stay to protect, and granting it would be internally contradictory.

p. 6

Legal principles established

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  • Factors for extension of time: length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent
  • Extension of time is an equitable discretionary remedy, not a right, and the applicant bears the burden of explaining the delay
  • Political campaigns or pressure of work cannot justify failure to take a time-bound litigation step

Court orders

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  1. 1.The notice of motion dated 24th March, 2023 is dismissed in its entirety
  2. 2.Costs to the respondent assessed at Kshs.20,000/=, all inclusive

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure Rules, 2020Order 42 Rule 6
  • Civil Procedure Rules, 2020Order 50 Rule 5

Cases cited (4)

  • Mutiso v Mwangi
    [1997] KLR 630
  • Thuita Mwangi v Kenya Airways
    [2003] eKLR
  • Geofrey Maina Njuguna v Waweru Ndirangu
    [2022] eKLR
  • Nicholas Kiptoo Korir Arap Salat v IEBC & 7 Others
    [2014] eKLR
On appeal from
Nakuru Chief Magistrate's Court (CMC ELR Cause No. 33 of 2020)
CMC ELR Cause No. 33 of 2020
Jurisdiction invoked
Sections 3A, 79G & 95 of the Civil Procedure Act; Orders 42 Rule 6 and 50 Rule 5 of the Civil Procedure Rules, 2020; Article 159(2) of the Constitution

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, "ARN Security & Training Services v Eregayi (Miscellaneous Application E017 of 2023) [2023] KEELRC 2752 (KLR)", Case Analysis (2023). Notice of motion dated 24th March, 2023 (Nakuru High Court; appeal from Nakuru CMC ELR Cause No. 33 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2752/eng@2023-11-02

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