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Court of AppealPartially AllowedNot stated in the judgment (Notice of Motion dated 25th July, 2019)· [2020] KECA 393 (KLR)

Tagage Hussein Edema v Hussein Edema Bariso [2020] KECA 393 (KLR)

Court of Appeal of Kenya
7 August 2020
FSF. Sicha
357 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed an appeal filed 36 days late because the applicant diligently pursued court proceedings and changed lawyers, showing short, explained delays can be excused.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi delivered on 7th August 2020 by F. Sichale, JA, in chambers, determining prayer No. 3 of an omnibus Notice of Motion dated 25th July 2019 by Gagaye Hussein Edema. The applicant sought extension of time to file a Notice of Appeal and a consequential Memorandum of Appeal against a decision of the High Court in Marsabit Miscellaneous Succession No. 1 of 2018 delivered on 19th June 2019. The applicant explained the delay by reference to a change of advocates from Messrs Biwott Korir & Co. Advocates to Ndungu & Co. Advocates and exhibited correspondence and receipts showing that he had applied for and paid for typed proceedings shortly after judgment. The respondent, Hussein Edama Bariso, opposed the motion through a replying affidavit, arguing principally that the intended appeal had no chances of success. The court, hearing the matter in the absence of counsel owing to the Covid-19 pandemic, held that the 36-day lapse between judgment and the filing of the motion was not inordinate, given the applicant's prompt endeavours to obtain proceedings. Leave was granted to file and serve the Notice of Appeal within seven days, with each party bearing their own costs. The judge expressly declined to entertain the remaining prayers in the omnibus motion, noting they could not be handled by a single judge. No authorities or statutes were cited in the ruling.

Key legal issues

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01

Whether the 36-day delay in filing the extension-of-time application was inordinate

Holding

The delay of 36 days from judgment to the filing of the motion was not inordinate, as the applicant had been diligent in seeking typed proceedings and had changed advocates during the period.

Reasoning

The court examined the timeline between the High Court judgment of 19th June 2019 and the filing of the motion on 25th July 2019. It found the applicant had applied for typed proceedings through his previous counsel, paid the requisite costs, and changed advocates, all of which accounted for the elapsed period without negligence. A 36-day delay in these circumstances was held not to be inordinate, justifying the grant of leave to file the Notice of Appeal out of time.

p. 2

Legal principles established

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  • A delay in filing an application for extension of time that is explained by the applicant's diligent efforts to obtain typed proceedings and change of advocate is not inordinate delay.

Court orders

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  1. 1.Leave granted to the applicant to file and serve the Notice of Appeal within seven (7) days of the date of the ruling
  2. 2.Each party to bear his own costs
On appeal from
High Court of Kenya
Marsabit Miscellaneous Succession No. 1 of 2018
Jurisdiction invoked
Inherent extension-of-time jurisdiction of the Court of Appeal (rule-based leave to file Notice of Appeal out of time); the specific rule is not named in the judgment

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, "Tagage Hussein Edema v Hussein Edema Bariso [2020] KECA 393 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion dated 25th July, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/393/eng@2020-08-07

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