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ELCAllowedNot stated· [2018] KEELC 2888 (KLR)

Joseph Maina Ndigirigi v Esther Gathoni Mithamo [2018] KEELC 2888 (KLR)

High Court of Kenya
21 June 2018
1,031 words in judgment
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The bottom line

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The High Court allowed a late appeal because the litigant never received notice of the judgment, showing courts excuse reasonable delays.

What this practically means

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Executive summary

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The High Court (Mary M. Gitumbi, J) determined two applications arising out of a judgment delivered on 24th March 2016 by Mrs. Kabaria, Principal Magistrate, in Chief Magistrates Civil Case Number 5881 of 2010. The Plaintiff, David Karanja Thuo, sought leave to lodge an appeal out of time under section 79G of the Civil Procedure Act. He explained that judgment had originally been set for 11th December 2015 but was not ready on several occasions, that it was ultimately delivered in the absence of himself and his advocates without notice, and that he only learned of it on 20th April 2016 when the Defendant's advocates sent a letter enclosing a cheque for Kshs. 999,000/- in part payment of the decretal sum. He filed the application on 13th May 2016, less than a month later. The Defendant, Esther Gathoni Mithamo, opposed, contending the application was an afterthought, time barred, and prejudicial to her since the decretal sum continued to attract interest. Applying the principle that delay is decided on the circumstances of each case and that the court should be lenient so as to allow a case to be determined on merit, the court found no evidence that the Plaintiff was ever served with a judgment notice and held that his explanation amounted to good and sufficient cause. The Plaintiff's application was accordingly allowed, with costs to abide the appeal. The Defendant's application to deposit Kshs. 1 million in court and pay the balance in 6 monthly installments was unopposed and was allowed as prayed, with costs likewise to abide the appeal.

Key legal issues

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01

Whether the Plaintiff demonstrated good and sufficient cause for not filing his appeal within the 30 days prescribed by section 79G of the Civil Procedure Act

Holding

Yes - the judgment was delivered in the absence of the Plaintiff and his advocates without a judgment notice having been served, and the Plaintiff moved promptly once he learned of the judgment.

Reasoning

The judgment was delivered on 24th March 2016 in the absence of the Plaintiff and his advocates, judgment having originally been set for 11th December 2015 but not ready on several occasions. The Defendant adduced no evidence that the Plaintiff was ever served with a judgment notice. The Plaintiff learned of the judgment on 20th April 2016 when a cheque for part of the decretal sum was sent, and filed the application on 13th May 2016, less than a month later. His reasons were therefore found to be good and sufficient.

p. 2
02

Whether the Defendant should be permitted to satisfy the decree by depositing part of the decretal sum and paying the balance in installments

Holding

Yes - the Defendant's Application was unopposed and was allowed as prayed.

Reasoning

The Defendant sought to pay the decretal sum by depositing Kshs. 1 million in court and the balance in 6 monthly installments, as the Plaintiff had refused payment contrary to the judgment of the lower court. The Plaintiff did not oppose the application. The court allowed it as prayed, with costs to abide the appeal.

p. 2

Legal principles established

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  • An appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time; the important factor is whether the delay is unreasonable.
  • Delay is a matter to be decided on the circumstances of each case and the court should be lenient so as to allow a case to be determined on merit.

Court orders

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  1. 1.The Plaintiff's Application for leave to lodge an appeal out of time is allowed
  2. 2.The Defendant's Application is allowed as prayed - to deposit Kshs. 1 million in court and pay the balance in 6 monthly installments
  3. 3.Costs shall abide the appeal

Authorities

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Legislation

  • Civil Procedure Actsection 79G

Cases cited (1)

  • Agip (Kenya) Ltd versus Highland Tyres Limited
    (2001) KLR 630
On appeal from
Chief Magistrates Court
Chief Magistrates Civil Case Number 5881 of 2010
Jurisdiction invoked
Section 79G of the Civil Procedure Act (appellate jurisdiction of the High Court over subordinate courts)

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, "Joseph Maina Ndigirigi v Esther Gathoni Mithamo [2018] KEELC 2888 (KLR)", Case Analysis (2018). Not stated. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2888/eng@2018-06-21

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