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Court of AppealDismissedCivil Application (as extracted from Kisii ELC No. 42 of 2019)· [2021] KECA 64 (KLR)

Ongwacho v Kenya Commerical Bank Limited (Civil Application 8 of 2021) [2021] KECA 64 (KLR)

Court of Appeal of Kenya
8 October 2021
1,682 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to forgive an 85-day delay in filing an appeal, because a vague Covid-19 excuse without evidence wasn't good enough.

What this practically means

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Executive summary

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This was a single-judge chamber application before the Court of Appeal at Nairobi, decided by F. Sichale, JA, on 8th October 2021. The applicant, Petiro Ongwacho Ongwacho trading as Bluu Nile International Hotel, moved under Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4 and 5(2)(b) of the Court of Appeal Rules, 2010, seeking extension of time to lodge a Notice of Appeal against a ruling of Hon. Jane M Onyango in Kisii ELC No. 42 of 2019, delivered on 5th November 2020, dismissing his application for an injunction to restrain the auction of his charged property, L.R. Wanjare/Bogiakumu/4318. The charge secured a Kshs 50,000,000 loan facility. The applicant attributed the failure to file the notice in time to Covid-19 self-isolation. The respondent countered that the delay ran from 5th November 2020 to 29th January 2021 (about 85 days), of which only about 25 days were explained, and that no medical evidence supported the illness claim. The court applied the settled Rule 4 principles from Abdul Azizi Ngoma v Mungai Mathayo and Leo Sila Mutiso v Rose Hellen Wangari Mwangi: length of delay, reasons for the delay, arguability of the appeal, and prejudice. It found the Covid-19 explanation unsupported and covering only 14 days, no explanation for the remainder, and the appeal not arguable since the loan was admittedly unpaid. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the applicant demonstrated sufficient reason for the delay in filing the Notice of Appeal

Holding

The Covid-19 self-isolation excuse explained at most 14 days of an approximately 85-day delay; no medical evidence was produced and the remaining period was unexplained.

Reasoning

The ruling was delivered on 5th November 2020 and the motion was dated 25th January 2021, a delay of about 85 days. The applicant deponed to 14 days of self-isolation after contracting Covid-19 but provided no medical evidence. The respondent correctly noted no explanation covered the period from 1st December 2020 to 29th January 2021. Consequently the threshold condition of sufficient reason was not met.

p. 4
02

Whether the intended appeal was arguable

Holding

The appeal was not arguable, since the loan facility remained unpaid and the only issue raised was a variation in the valuation report.

Reasoning

The applicant's grounds centred on alleged non-compliance with Section 97 of the Land Act regarding the valuation report. The court found the loan facility outstanding and undisputed, leaving only the valuation variation as an issue. That did not demonstrate that the appeal was arguable, one of the discretionary factors for extension of time.

p. 4

Legal principles established

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  • The Court's discretion to extend time under Rule 4 arises only once sufficient reason is established, after which absence of prejudice and prospects of success may be considered.
  • In deciding whether to extend time, the Court considers the length of the delay, the reasons for the delay, possibly the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

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  1. 1.The motion dated 25th January 2021 seeking extension of time to lodge a Notice of Appeal is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A & 3B
  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 5(2)(b)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Land ActSection 97(1) (No. 6 of 2012)

Cases cited (7)

  • R. Billing & Co. Advocates vs. Kundan Singh Construction Limited
  • Vishva Stone Suppliers Company Limited v RSR Stone
    [2006] eKLR
  • Nicholas Kiptoo Arap Salat v IEBC & 7 others
  • Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet
  • Bi- Mach Engineers Limited vs. James Kahoro Mwangi
    [2011] eKLR
  • Abdul Azizi Ngoma vrs. Mungai Mathayo
  • Leo Sila Mutiso V. Rose Hellen Wangari Mwangi
    Civil Application No. Nai 251 of 1997
On appeal from
Environment and Land Court, Kisii
Kisii ELC No. 42 of 2019
Jurisdiction invoked
Section 3A & 3B of the Appellate Jurisdiction Act (CAP 9), Rule 4 and Rule 5(2)(b) of the Court of Appeal Rules, 2010 and Article 159(2)(d) of the Constitution of Kenya, 2010

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, "Ongwacho v Kenya Commerical Bank Limited (Civil Application 8 of 2021) [2021] KECA 64 (KLR)", Case Analysis (2021). Civil Application (as extracted from Kisii ELC No. 42 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/64/eng@2021-10-08

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