https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11669

Githae v Ndegwa (Suing as the Legal Representative of Daniel Wanjiku Ndegwa - Deceased) (Civil Miscellaneous Application E260 of 2025) [2026] KEHC 11669 (KLR) (Civ) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11669 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Miscellaneous Application E260 of 2025 EKO Ogola, J July 23, 2026 Between Daniel Njuguna Githae Appellant and James Kariuki Ndegwa (Suing as the Legal Representative of Daniel Wanjiku Ndegwa - Deceased) Respondent (Being an application for extension of time to file an appeal out of time and stay of execution against the Judgment of the Co-operative Tribunal delivered on 30th May 2024 by Hon. J. Mwatsama - Deputy Chairperson, Hon. B. Sawe, Hon. F. Lotuiya, Hon. P. Gichuki, Hon. M. Chesikaw, and Hon. P. Aol - Members, in Co-operative Tribunal Case No. 478 of 2011) Ruling Introduction 1.By a Notice of Motion dated 14th October 2025 and filed on 15th October 2025, the Applicant, Daniel Njuguna Githae, moved this Court seeking the following orders:i.That the application be certified as urgent and service thereof be dispensed with in the first instance.ii.That leave be granted out of time, to file a Memorandum of Appeal against the judgment/decree of the Cooperative Tribunal dated May, 2024 in Co-operative Tribunal Case Number 478 of 2011.iii.That leave be granted to file an appeal out of time to the High Court of Kenya against the judgment/decree of the Cooperative Tribunal dated 30th May, 2024 in Co-operative Tribunal Case Number 478 of 2011.iv.That the court be pleased to issue stay of execution of the judgment/decree of the Cooperative Tribunal dated May, 2024 pending the hearing and determination of this case.v.That costs of this application be provided for. 2.The application is supported by an Affidavit sworn by the Applicant on even date. The Respondent, James Kariuki Ndegwa (suing as the Legal Representative of the Estate of Diana Wanjiku Ndegwa (Deceased)), opposes the application through a Replying Affidavit sworn on 10th July 2026. The Applicant’s Case 3.In his Supporting Affidavit sworn on 14th October 2025, Daniel Njuguna Githae states that the Co-operative Tribunal delivered a judgment on 30th May 2024 in Tribunal Case No. 478 of 2011, which declared the Respondent as the owner of property known as Mutubiri/Wempa/BK.2/2283, a decision he contends is highly prejudicial to him as the rightful owner. 4.He states that upon perusing the judgment (annexed as DNG-1), he observed glaring inconsistencies and a failure by the Tribunal to evaluate the evidence on record. He requested his advocates to apply for a certified copy of the judgment via a letter dated 4th June 2024 (annexed as DNG-2). The Applicant asserts that the judgment was made available to his advocates on 24th January 2025, after which he instructed them to appeal, but the statutory timelines had already lapsed. He attributes the delay to a "misunderstanding" with his previous advocates, who failed to inform him of the outcome in a timely manner, forcing him to seek alternative legal representation. He has annexed a draft Memorandum of Appeal dated 25th June 2025 (marked DNG-3), raising nine (9) grounds of appeal, and asserts that the intended appeal is arguable with high prospects of success. Furthermore, he deposes that he moved the Court without undue delay, that execution has not commenced, and that no prejudice will be suffered by the Respondent. 5.In his written submissions dated 7th July 2026, counsel for the Applicant argues that the jurisdiction to extend time is discretionary and exercised to achieve substantive justice. Relying on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR and Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, counsel contends that the delay was plausibly explained by counsel’s inaction and misunderstanding. Relying on Belinda Murai & others v Amos Wainaina [1979] eKLR and Philip Chemwolo & another v Augustine Kubende [1986] eKLR, counsel asserts that mistakes or blunders of advocates should not be visited upon an innocent litigant to shut them out of court. Invoking Articles 50(1) and 159(2)(d) of the Constitution of Kenya, 2010, the Applicant urges the Court to prioritize substantive justice over procedural technicalities. The Applicant also mistakenly submitted that the Respondent had failed to file a response to the application, relying on Trust Bank Limited v Paramount Universal Bank Limited & 2 others [2009] eKLR to argue that his affidavit evidence stood uncontroverted. The Respondent’s Case 6.In his Replying Affidavit sworn on 10th July 2026, James Kariuki Ndegwa, as the legal representative of the Estate of Diana Wanjiku Ndegwa (Deceased), denies that the application is uncontroverted and refutes the Applicant's claims. He states that under Section 81(1) of the Co-operative Societies Act, an appeal ought to have been lodged within thirty (30) days of judgment. He submits that the judgment was delivered on 30th May 2024, and the Applicant's own exhibit (DNG-2) shows that as early as 4th June 2024, just five (5) days post-judgment his advocates were already instructed and had formally requested a copy of the judgment. He contends that the statutory timeline expired at the end of June 2024, yet the Motion was filed on 14th October 2025, establishing an unaccounted delay of approximately 502 days. 7.The Respondent further points out that even accepting the Applicant’s assertion that he obtained the judgment on 24th January 2025, he waited an unexplained 263 days before filing the Motion. Moreover, although the draft Memorandum of Appeal is dated 25th June 2025, the Applicant waited another 111 days before moving the Court. The Respondent deposes that the vague plea of "misunderstanding with counsel" is unsupported by any advocate's affidavit, complaint to regulatory bodies, or correspondence. On the merits, he states that the Applicant called no witnesses at the Tribunal hearing on 8th November 2023 to produce or prove any documents. The Respondent further states that execution of the decree is complete, the suit property has already been transferred and registered in his name as the legal representative. Consequently, the prayer for stay of execution is overtaken by events and legally unviable without restorative prayers. 8.In his submissions dated 17th July 2026, counsel for the Respondent asserts that extension of time is an equitable remedy requiring a candid, consistent, and satisfactory explanation for the entire period of delay, citing County Executive of Kisumu v County Government of Kisumu & 8 others [2017] KESC 16 (KLR). Counsel submits that under Rupa Savings & Credit Co-operative Society v Violet Shidogo [2022] KEHC 2028 (KLR), merely shifting blame to counsel without specificity or proof of diligence is insufficient. Citing Co-operative Bank Housing Co-operative Society v Ruchugo [2025] KEHC 11748 (KLR), counsel contends that serial inactions post-receipt of judgment disentitle the Applicant to equitable relief. 9.Regarding the merits of the intended appeal, counsel references Mwige v Kiguta & 2 others [2015] KECA 334 (KLR) to argue that unproduced documents marked for identification have no evidential value, rendering the proposed grounds of appeal frivolous. On the issue of stay of execution, the Respondent relies on M'Murungi M'Mbwiria v M'Mungania M'Ikiara [1999] KECA 101 (KLR) for the proposition that a stay cannot issue prospective relief to reverse an already completed land transfer and registration. Issues For Determination 8.Having considered the pleadings, affidavit evidence, written submissions, and applicable statutory and judicial authorities, the sole issue for determination before this Court is whether the Applicant has established a proper basis for the grant of leave to file an appeal out of time and for an order of stay of execution. Determination A. Principles Governing Extension of Time 11.The statutory framework governing appeals from the Co-operative Tribunal is Section 81(1) of the Co-operative Societies Act (Cap 490), which mandates that an appeal to the High Court must be lodged within thirty (30) days from the date of the decision. The power of this Court to enlarge time is discretionary, anchored under Section 79G of the Civil Procedure Act (Cap 21). 12.The principles guiding the exercise of judicial discretion in applications for extension of time were settled by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others [2014] KESC 12 (KLR). These considerations include:i.The length of the delay;ii.The reason for the delay;iii.The degree of prejudice to the respondent;iv.The chances of the intended appeal succeeding; andv.The overarching public interest. B. Evaluation of the Delay and Explanation 13.In County Executive of Kisumu v County Government of Kisumu & 8 others [2017] KESC 16 (KLR), the Supreme Court reiterated that an applicant seeking extension of time must satisfactorily explain the entire period of delay. 13.The record reveals a fatal chronological inconsistency in the Applicant’s case as detailed hereunder:i.30th May 2024: The Co-operative Tribunal delivers its judgment.ii.4th June 2024: The Applicant’s advocates request a certified copy of the judgment (produced and marked as exhibit DNG-2), establishing actual knowledge of the decision within five (5) days.iii.24th January 2025: The Applicant alleges when the judgment was received.iv.25th June 2025: The draft Memorandum of Appeal is prepared.v.14th October 2025: The present application is executed and subsequently filed on 15th October 2025. 15.The total delay from the date of judgment is 502 days which is over 16 months. Even if the Court were to adopt the date the judgment was allegedly received, being the 24th day of January 2025, a further 263 days lapsed before the application was filed. Even after the draft appeal was finalized on 25th June 2025, the Applicant remained inactive for another 111 days. 16.The explanation proffered for this monumental delay is a blanket claim of a "misunderstanding with former counsel." As established in Rupa Savings & Credit Co-operative Society v Violet Shidogo [2022] KEHC 2028 (KLR), a party cannot simply pass the blame to previous advocates without placing specific, verifiable facts or supporting evidence before the Court. The Applicant provided no affidavit from former counsel, no copy of formal complaints lodged with the Advocates Complaints Commission, nor any correspondence showing efforts to follow up on the matter. Furthermore, the firm of advocates that wrote the letter on 4th June 2024 (DNG-2) is the exact same firm that filed the present application, completely undermining the assertion of an undisclosed "former advocate." 17.While the principles in Belinda Murai v Amos Wainaina [1979] KECA 25 (KLR) and Philip Chemwolo v Augustine Kubende [1986] KECA 87 (KLR) protect litigants against excusable mistakes of counsel, they do not excuse continuous, unproved, and unexplained gross indolence. C. Arguability of the Intended Appeal 18.On the arguability of the appeal, the Tribunal's record shows that the Applicant and his co-respondents called no witnesses during the hearing on 8th November 2023 to formally tender evidence. Under the rule in Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] KECA 334 (KLR), documents filed or marked for identification do not constitute proved evidence unless formally produced by a witness. The intended appeal seeks to challenge factual findings where no rebuttal evidence was offered at trial. D. Application for Stay of Execution 19.Regarding the prayer for stay of execution, the Respondent’s sworn evidence confirms that execution of the decree is complete. Title deed number Mutubiri/Wempa/BK.2/2283 has already been issued and registered in the name of James Kariuki Ndegwa as the legal representative of the deceased's estate. 20.In M'Murungi M'Mbwiria v M'Mungania M'Ikiara [1999] KECA 101 (KLR), it was held that a stay of execution operates prospectively and cannot undo a completed transfer or registration in the absence of distinct orders for cancellation or rectification. The Applicant sought no restorative remedies. Granting a stay at this juncture is legally impossible as the prayer has been overtaken by events. Orders And Disposition 21.Equity aids the vigilant, not those who slumber on their rights (vigilantibus non dormientibus jura subveniunt). The Applicant has failed to give a satisfactory explanation for an exorbitant delay of 502 days, has demonstrated no arguable appeal, and seeks stay of a decree that has already been executed. The application is totally devoid of merit. 22.Consequently, the Court issues the following orders:a.The Applicant's Notice of Motion application dated 14th October 2025 be and is hereby dismissed in its entirety.b.The Applicant shall pay the Respondent the costs of this application.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF JULY 2026…………………………………….E. K. OGOLAJUDGEIn the Presence of:Ms. Kiama h/b Kimani ....………..for the AppellantMr. Mwangi Muthoni.....………for the RespondentGisiele………..…………...………… Court Assistant