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ELCDismissedKericho ECL Civil Appeal No. 3 of 2014· [2018] KEELC 2203 (KLR)

John Koech Mugun v Paul Kiplngat Keter [2018] KEELC 2203 (KLR)

High Court of Kenya, Environment and Land Court
17 July 2018
2,031 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a late appeal because the applicant offered no credible explanation for the delay and could not use it to dodge contempt proceedings.

What this practically means

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Executive summary

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The applicant filed a memorandum of appeal on 3rd January 2014 against the judgment of Nancy Barasa RM delivered on 26th June 2013 in Sotik RMCC No. 191 of 2012, and later by Notice of Motion dated 17th April 2018 sought leave to extend time for filing the appeal, validation of the memorandum of appeal, a stay of execution of the judgment, and a stay of contempt proceedings arising from Kericho Misc. Application No. 3 of 2014. The respondent advocate filed a preliminary objection contending that no valid appeal existed, the memorandum having been filed without leave long after the 30-day period under section 79G of the Civil Procedure Act, that the decree had been fully executed, and that the application was an abuse of process aimed at defeating contempt proceedings. The court framed five issues, including the validity of the appeal, whether it should be admitted out of time, whether the decree had been executed, and whether the court could stay contempt proceedings. Considering the applicant's claim that former advocates' mistakes caused the delay, the court held that the binding Court of Appeal authorities place the burden on the applicant to place sufficient material before the court, and that indolence or negligence of counsel cannot be excused. The applicant filed no certificate of delay and offered no adequate explanation. The court further held that the applicant was in blatant violation of its order and could not circumvent contempt proceedings through an application concerning a judgment delivered five years earlier and already executed. The preliminary objection was upheld and the application dismissed with costs to the respondent.

Key legal issues

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01

Whether the memorandum of appeal filed out of time without leave is valid

Holding

The appeal was invalid as it was filed after the 30-day period under section 79G had elapsed without leave of the court, and no sufficient material was placed before the court to justify extension of time.

Reasoning

Section 79G requires an appeal from a subordinate court to be filed within 30 days unless the lower court certifies time for preparing the decree, or the appellant shows good and sufficient cause. The applicant filed no certificate of delay, and although he blamed former advocates, the binding Court of Appeal authorities establish that a client has a duty to follow up with his advocates and that indolence and advocate negligence cannot be excused under Article 159.

p. 3
02

Whether the court can stay execution and contempt proceedings pending an intended appeal

Holding

The court declined to stay execution or contempt proceedings, holding that orders must be obeyed and that the applicant could not circumvent pending contempt proceedings through an extension-of-time application in respect of a judgment already executed.

Reasoning

The court found that the decree had been fully executed and that the applicant was in blatant violation of its order in ELC Misc Application No. 10 of 2017. Allowing a stay of contempt would enable the contemnor to continue violating a court order, which would undermine the administration of justice. The application was thus dismissed and the preliminary objection upheld.

p. 3

Legal principles established

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  • The burden lies on a party seeking the exercise of the court's discretion in his favour to place material before the court upon which the discretion is to be exercised; a mere assertion of counsel's mistake is no answer.
  • Court orders must be obeyed and failure to do so violates the administration of justice.

Court orders

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  1. 1.Upheld the Preliminary Objection by the Respondent
  2. 2.Dismissed the applicant's Notice of Motion dated 17th April 2018 with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Constitution of KenyaArticle 159

Cases cited (7)

  • Asma Ali Mohammed v Fatime Mwinyi Juma
    [2014] eKLR
  • Apa Insurance Limited v Michael Kinyanjui Muturi
    {2016} eklr
  • Banco Arabe Espanol v Bank of Uganda
    [1999] 2 EA 22
  • Mwangi Kinuthia v Joseph Njoroge Mwangi
    Civil Application No. 397 of 1996
  • Mugo Njogu v Mary Githinji
    (2010) eKLR
  • Bismach Engineers Ltd v James Kahoro Mwangi
    (2011) eKLR
  • Floris Pierro & Another v Giancarlo Falasconi
    2014 eKLR
On appeal from
Resident Magistrate's Court, Sotik
Sotik RMCC No. 191 of 2012
Jurisdiction invoked
Section 79G of the Civil Procedure Act (appeal from a subordinate court to the High Court)

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, "John Koech Mugun v Paul Kiplngat Keter [2018] KEELC 2203 (KLR)", Case Analysis (2018). Kericho ECL Civil Appeal No. 3 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2203/eng@2018-07-17

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