Sophia Ndinda Mwaka & another (suing as the legal representatives of the estate of Gedion Mwaka Kiveke – Deceased) v Patrick Masila Malu & 2 others [2022] KEELC 374 (KLR)
The bottom line
#A Kenyan court allowed an estate to appeal a dismissed land case a year late, accepting illness, counsel's absence, and COVID-19 as genuine reasons for the delay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the firm of messrs Donex Juma & Co. Advocates should be allowed to come on record for the Applicants.
- 2.Whether the Applicants should be granted leave to file an Appeal out of time.
Key legal issues
#Change of advocate after judgment
The incoming firm was properly allowed on record under Order 9 Rule 9 of the Civil Procedure Rules, judgment having been passed in the lower court.
Order 9 Rule 9 requires a court order or consent for a change of advocate after judgment. The outgoing advocate, Mr. Ngulu, did not object, and the incoming firm sought to come on record in compliance with the provision, so the court allowed it.
Leave to appeal out of time
Leave granted; the Applicants gave plausible reasons for the delay (counsel abroad, illness, COVID-19 restrictions) and the intended appeal was arguable with no prejudice shown.
Applying the Mwangi v Kenya Airways factors (length and reason for delay, arguability, prejudice), the court found the explanations plausible: counsel was absent at judgment, the Applicants learned of it in August 2021, the 1st Applicant was unwell, and COVID-19 scaled down court operations. The respondents showed no prejudice, the land being registered in the 3rd Respondent's name.
Legal principles established
#- An extension of time requires the applicant to show arguability, not a high probability of success.
Court orders
#- 1.The firm of Donex Juma & Company Advocates allowed to come on record for the Applicants
- 2.Leave granted to the Applicants to appeal out of time against the judgment in Kangundo SPMCC No. 53 of 2014
- 3.Applicants directed to file and serve the Memorandum of Appeal within fourteen (14) days from the date of the ruling
- 4.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (Kangundo)
- SPMCC No. 53 of 2014
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 79G & 95 of the Civil Procedure Act and Order 9(a) & 10 of the Civil Procedure Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I direct the Applicants to file and serve the Memorandum of Appeal within fourteen (14) days from the date hereof.
I find the Applicants' Notice of Motion dated 1st November, 2021 merited, and will allow it.
Of course, all the Applicants have to show at this stage is arguability – not high probability of success.
it is trite that indeed the COVID pandemic actually culminated in the court scaling down its activities and presented restrictions, which in turn affected litigants
Issues in the judgment
#The 1st Respondent is named 'Patrick Masila Malu' in the notice of motion but 'Patrick Masila Mulu' when describing the replying affidavit.
The judgment does not state its own case number or the names of the Applicants/Respondents as formal parties in the title; only the underlying suit and appeal numbers appear.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sophia Ndinda Mwaka & another (suing as the legal representatives of the estate of Gedion Mwaka Kiveke – Deceased) v Patrick Masila Malu & 2 others [2022] KEELC 374 (KLR)", Case Analysis (2022). Notice of Motion dated 1st November, 2021 (Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/374/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.