Donald Mwachof v Ruth Sambo Shuma [2017] KEELC 79 (KLR)
The bottom line
#A Voi litigant lost his bid to revive a late appeal because he gave the High Court no credible explanation for a 22-month delay.
What this practically means
#Executive summary
#Key legal issues
#Whether sufficient cause was shown for extension of time under Section 79G of the Civil Procedure Act
The application was dismissed because the Applicant failed to give a satisfactory explanation for the delay and the application was an afterthought brought only after the appeal had been struck out
The orders sought to be appealed were made in March and April 2015, yet the application was filed in February 2017 after Omollo J had struck out the appeal. The Applicant blamed his Advocate's misunderstanding of Mureithi J's ruling but did not demonstrate when the mistake was occasioned. A party cannot benefit from unexplained delay occasioned by Counsel where the explanation is not shown to the Court's satisfaction.
Whether the Court could grant leave where doing so would effectively reverse the decision of another judge of concurrent jurisdiction
The Court held it had no jurisdiction to overturn the orders of Omollo J striking out the appeal; the application sought to restart the appeal process, which required candour and good faith, absent here
Borrowing from the Court of Appeal decision in George Wachira Kirira v Joe Maina Ruthuti, the Court posed whether granting leave would overturn the judicious decision of a learned sister judge that ended the litigation. It concluded there is no legal provision granting such jurisdiction. While a party may restart the appellate process after a strike-out, he must explain his failures, and the explanation here was unsatisfactory.
Legal principles established
#- A party whose appeal has been struck out as incompetent may restart the appellate process but must explain his failure to take essential steps in the struck-out appeal
- Leave to appeal out of time is discretionary but must be exercised judiciously and only where sufficient cause is shown
- A judge of the High Court has no jurisdiction to overturn or set aside orders made by another judge of concurrent jurisdiction
Court orders
#- 1.The Notice of Motion dated 23rd February 2017 is dismissed with costs
- Jurisdiction invoked
- Sections 79G, 95 and 3A of the Civil Procedure Act; Order 50 Rule 6 and Order 22 Rule 25 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Donald Mwachof v Ruth Sambo Shuma [2017] KEELC 79 (KLR)", Case Analysis (2017). Notice of Motion dated 23rd February 2017 (arising from Voi SRMCC No. 80 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/79/eng@2017-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.