Joseph Maina Ndigirigi v Esther Gathoni Mithamo [2018] KEELC 2888 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Whether the Defendant should be permitted to satisfy the decree by depositing part of the decretal sum and paying the balance in installments
Yes - the Defendant's Application was unopposed and was allowed as prayed.
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.
Legal principles established
#- 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
#- 1.The Plaintiff's Application for leave to lodge an appeal out of time is allowed
- 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.Costs shall abide the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.