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ELCDismissedBaricho Civil Case No. 7 of 2013 (application dated 28th August 2015)· [2017] KEELC 1393 (KLR)

Edward Munene Mugo v Bonface Muriithi Muthonjia & 2 others [2017] KEELC 1393 (KLR)

High Court of Kenya
29 September 2017
BOB.N. Olao
1,032 words in judgment
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The bottom line

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Kenya's High Court refused to extend time for filing an appeal because the fourteen-month delay was unexplained, and being present when the ruling was delivered made it worse.

What this practically means

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Executive summary

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The applicant, Edward Munene Mugo, moved the High Court by Notice of Motion dated 28th August 2015 under Sections 79G and 95 of the Civil Procedure Act seeking extension of time to appeal against the ruling and orders of 28th August 2014 in Baricho Civil Case No. 7 of 2013. He deponed that he was never a party to the original suit, learned of it through an auction advertisement by Quickline Auctioneers, bid and paid Kshs. 300,000 for the suit land, and only later discovered it had been transferred to the respondent, who was also not an original party. An earlier application for leave to appeal out of time had been dismissed. The respondent opposed, explaining that he had obtained a decree in a suit for specific performance of a land sale, encountered a prohibitory order, sought review, and that the applicant was merely attempting to deny him the fruits of his judgment, having slept on his rights for over a year despite being present when the ruling was delivered. Relying on the Supreme Court's principles in the Salat case and Section 79G, Justice B.N. Olao held that the power to extend time is discretionary and requires good and sufficient cause. The fourteen-month delay was inordinate and unexplained, and the unrebutted evidence that the applicant was present in court when the ruling was delivered weighed against him. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether the delay in seeking leave to appeal out of time was explained

Holding

The delay of fourteen months was inordinate and unexplained, and the applicant was present in court when the ruling was delivered, so no good and sufficient cause was shown

Reasoning

The court applied Section 79G of the Civil Procedure Act and the Salat principles: extension of time is discretionary and equitable, delay must be satisfactorily explained, and prejudice to the other side considered. The ruling was delivered on 28th August 2014 and the application filed on 6th October 2015, fourteen months later. No explanation was offered, and the unrebutted assertion that the applicant was present when the ruling was delivered showed he went to slumber, only moving when costs were being assessed.

p. 2

Legal principles established

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  • Extension of time is an equitable remedy, not a right, requiring a satisfactory explanation of delay and absence of prejudice; in election matters public interest is also considered
  • An appeal may be admitted out of time only if the appellant shows good and sufficient cause for not filing in time

Court orders

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  1. 1.The application dated 28th August 2015 and filed on 6th October 2015 is dismissed
  2. 2.Costs of the application to the 1st respondent

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95

Cases cited (1)

  • Nicholas Kiptoo arap Korir Salat v I.E.B.C & Others
    S.C Application No. 6 of 2014
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act

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, "Edward Munene Mugo v Bonface Muriithi Muthonjia & 2 others [2017] KEELC 1393 (KLR)", Case Analysis (2017). Baricho Civil Case No. 7 of 2013 (application dated 28th August 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1393/eng@2017-09-29

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