Kiniaru & another (As administrators of the Estate of Simon Kiniaru Gitau) v Githinji & 2 others; Mihango (Interested Party) (Environment and Land Case Application E047 of 2024) [2025] KEELC 3765 (KLR)
The bottom line
#A Kenyan court allowed a family to appeal a land judgment three years late, showing courts will excuse delay when parties genuinely didn't know about the case.
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 Court should grant orders of stay of execution of the Judgment and decree in Ruiru ELC 136 of 2019
- 2.Whether the Applicants are entitled to orders of extension of time within which to file their Appeal
- 3.Who shall bear the costs of the Application
Key legal issues
#Stay of execution of the Ruiru ELC judgment pending intended appeal
Stay granted. Although filed about 3½ years after judgment, the delay was satisfactorily explained; substantial loss (eviction of estate beneficiaries) was demonstrated; arguable grounds of appeal existed; the Court carried out a balancing act under the overriding objective.
The Court applied the settled Order 42 rule 6(2) criteria — reasonable delay, substantial loss and security — reinforced by the overriding objective in sections 1A and 1B of the Civil Procedure Act. It accepted the applicants' explanation that the estate had no notice of the ex parte judgment against a deceased defendant, noted the memorandum of appeal raised arguable points, and balanced the decree holder's right to the fruits of judgment against the appellants' right of appeal. Security was left to the Court's discretion; a stay was granted pending the intended appeal.
Extension of time to file notice of appeal and appeal out of time under Section 79G
Extension granted. The three-year delay was inordinate but plausibly explained: the deceased defendant's estate learned of the judgment in September 2023, prior counsel failed to file the appeal, and a limited grant ad litem was needed. The intended appeal was not frivolous and the ex parte nature of the judgment favoured access to the appellate process.
Applying Section 79G and the principles in Leo Sila Mutiso and Nicholas Kiptoo Korir arap Salat, the Court weighed length and reason for delay, arguability and prejudice. Although three years was inordinate and prejudiced the respondent, the applicants' explanation — ignorance of the judgment, prior advocates' failure, and the need for a limited grant ad litem — was plausible. The intended appeal was held arguable, and the ex parte nature of the judgment weighed in favour of substantive rather than procedural justice.
Costs of the application
Costs were ordered to be in the cause rather than awarded outright to either side.
While acknowledging the general rule in Section 27 of the Civil Procedure Act that costs follow the event per Hussein Janmohamed & Sons, the Court in its discretion ordered costs of the motion to abide the outcome of the intended appeal, since the substantive dispute remained pending before the appellate court.
Legal principles established
#- An appeal may be admitted out of time if the appellant shows good and sufficient cause; extension of time is a discretionary, equitable remedy assessed on length and reason for delay, arguability of the appeal and prejudice to the respondent.
- Stay of execution pending appeal requires satisfaction of Order 42 rule 6(2): no unreasonable delay, substantial loss, and security for due performance of the decree, balanced under the overriding objective.
Court orders
#- 1.An order staying the Judgment and all Orders emanating from ELC Case No. 136 of 2019 (Magistrates' Court at Ruiru) until the intended Appeal is heard and determined
- 2.Leave granted to the Applicants to file an Appeal out of time
- 3.The Memorandum of Appeal attached to the Application deemed properly filed upon payment of requisite fees, to be served within 10 days
- 4.In default of filing/service within 10 days, the orders for leave shall stand vacated
- 5.Costs of the Application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court at Ruiru (ELC Case No. 136 of 2019)
- ELC Case No. 136 of 2019
- Jurisdiction invoked
- Articles 40 and 159 of the Constitution; Sections 1A, 1B, 3A and 79G of the Civil Procedure Act; Order 42 Rule 6, Order 40 Rule 1, Order 50 and Order 51 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.
In the end result, the Application dated 29/07/2024 is allowed in the following terms;
An order is hereby issued staying the Judgment of the Court and all Orders emanating from the ELC Case No. 136 of 2019 (In the Magistrate Court at Ruiru) until the intended Appeal is heard and determined.
Leave is hereby granted to the Applicants to file an Appeal out of time.
The costs of this Application shall be in cause. It is so ordered.
The purpose of an Application for stay of execution pending an Appeal is to preserve the subject matter in dispute so that the rights of the Appellant who is exercising the undoubted right of appeal are safeguarded
The underlying principles a Court should consider in exercise of such discretion should include:-
although the delay of three (3) years was inordinate, the Applicants have given a plausible explanation on the cause of that delay
Issues in the judgment
#Internal inconsistency in dates of the dismissed set-aside ruling: the supporting documents describe it as delivered 2/09/2023 while the judgment elsewhere refers to 'the Ruling of 2/11/2023' dismissing the application to set aside.
The application seeks extension of time to file a notice of appeal and appeal against 'the Ruling ... delivered on the 2nd September 2023 and the Judgment of the Court', yet the judgment under appeal is stated to have been delivered on 25/02/2021; the notice of appeal relates to a judgment of the Magistrates' Court, but the applicant's own submissions frame the stay as relating to 'Nakuru No. 279 of 2016', inconsistent with the Ruiru ELC 136 of 2019 proceedings discussed throughout.
The application invokes 'Section 79G of the Civil Procedure Rules', although Section 79G belongs to the Civil Procedure Act, not the Rules.
The judgment records that the 1st Respondent in places deposes as 'he' and elsewhere as 'she' without explanation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiniaru & another (As administrators of the Estate of Simon Kiniaru Gitau) v Githinji & 2 others; Mihango (Interested Party) (Environment and Land Case Application E047 of 2024) [2025] KEELC 3765 (KLR)", Case Analysis (2025). ELC Case No. 136 of 2019 (Judgment/Ruling of 13 May 2025 on Notice of Motion dated 29/07/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3765/eng@2025-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.