Ongwacho v Kenya Commerical Bank Limited (Civil Application 8 of 2021) [2021] KECA 64 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant demonstrated sufficient reason for the delay in filing the Notice of Appeal
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.
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.
Whether the intended appeal was arguable
The appeal was not arguable, since the loan facility remained unpaid and the only issue raised was a variation in the valuation report.
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.
Legal principles established
#- 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
#- 1.The motion dated 25th January 2021 seeking extension of time to lodge a Notice of Appeal is dismissed
- 2.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.