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Court of AppealAllowedCivil Application E030 of 2022· [2022] KECA 865 (KLR)

Linguyani v Mbwabi

Court of Appeal
22 July 2022
755 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled you cannot be punished for missing a court order you were never told about, and gave the appellant more time.

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 Kisumu (F Tuiyott, JA) on a Notice of Motion dated 21st February 2022 seeking extension of time to comply with an earlier order of the court. On 15th June 2021, Warsame, JA had granted the applicant leave to file and serve a Notice and Record of Appeal out of time in an intended appeal from the judgment of M. N. Nderi, J in Kisumu ELRC No. 63 of 2016, ordering compliance within 14 days and payment of Kshs. 20,000/= costs to the respondent within the same period. The order was not complied with; the applicant explained that he only learned of the ruling on 21st January 2022 when he received a mention notice from the respondent's counsel. The respondent opposed, arguing the applicant was in contempt of the order, had not paid the ordered costs despite demand, and that the application filed 30 days after knowledge of the ruling was inordinately late, continuing a pattern of delay. The court held it was common ground that neither party had been notified of the ruling, the court itself having erred in not notifying the parties, so the applicant could not be blamed for non-compliance with an order of which he was unaware. It further held that payment of costs was a second limb of the order and the applicant could not be begrudged for seeking extension to comply with both limbs, and that a 30-day delay in the circumstances was not inordinate. The application was allowed; the applicant was granted 14 days to comply with the orders of 15th June 2021, with costs of the application to be in the appeal.

Key legal issues

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01

Non-compliance with an order the party did not know of

Holding

Non-compliance attributable to the court's failure to notify cannot defeat an extension application.

Reasoning

The court found it common ground that neither party was notified of the 15th June 2021 ruling; even the respondent learned of it six months later through registry inquiries. Since the court itself erred in not notifying the parties, the applicant could not be blamed for non-compliance with an order of which he was unaware.

p. 2
02

Extension of time to comply with both limbs of the order

Holding

The applicant was entitled to seek extension of time to comply with both the filing and the costs limbs of the order.

Reasoning

Although the applicant would have been in better standing had he paid the Kshs. 20,000/= costs when demanded on 22nd January 2022, payment of costs was the second limb of the order, to be complied with within the same timelines, so he could not be begrudged seeking extension for both limbs together.

p. 2
03

Whether the 30-day delay was inordinate

Holding

A 30-day delay in filing the application after knowledge of the ruling was not inordinate in the circumstances.

Reasoning

The court acknowledged the applicant could have acted with greater alacrity but held that, in the circumstances of the case, thirty days did not amount to inordinate or unreasonable delay warranting denial of the extension.

p. 2

Legal principles established

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  • A party cannot be faulted for failing to comply with an order of which the court, through its own error, failed to give notice.
  • A 30-day delay in seeking extension of time to comply, where the party lacked notice of the order, does not amount to inordinate delay.

Court orders

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  1. 1.The application of 21st February 2022 is allowed
  2. 2.The applicant is granted fourteen (14) days to comply with the orders made in the ruling of 15th June 2021
  3. 3.Costs of this application shall be in the appeal
On appeal from
Court of Appeal
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal to extend time for compliance with its own orders (application for enlargement or extension of the ruling of 15th June 2021)

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, "Linguyani v Mbwabi", Case Analysis (2022). Civil Application E030 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/865/eng@2022-07-22

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