Abdul Ibrahim Musa v Rehema Badi Ali [2019] KEELC 235 (KLR)
The bottom line
#The High Court in Mombasa refused to let a litigant appeal six months late because he never explained the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the inordinate delay in seeking leave to appeal out of time was satisfactorily explained
No. The applicant knew of the dismissal on 1st July 2018 but filed only on 15th January 2019 with no explanation for the over six-month delay; absence from the country is not a reasonable ground as he was represented by counsel.
Applying the Supreme Court's principles in County Executive of Kisumu, the court held that the whole period of delay must be declared and explained satisfactorily. The affidavit disclosed knowledge of the dismissal on 1st July 2018 yet the motion was filed on 15th January 2019. No explanation for that gap was offered. The applicant was represented throughout by counsel, so his absence from the country could not excuse the delay. Laying a basis means explaining the delay, which was not done.
Whether the applicant's intended appeal being arguable justified extension of time
No. Arguability alone is insufficient; the applicant must also lay a basis for the delay, which he failed to do.
The applicant asserted an arguable appeal with high chances of success and gave grounds. However, following County Executive of Kisumu v County Government of Kisumu, the court restated that arguability of a matter is not by itself a ground for extension of time. Laying a basis is confirmed solely in explaining the reasons for the delay in filing the appeal in time, and that basis was absent here.
Legal principles established
#- Extension of time is not a right but an equitable remedy available to a deserving party, and the applicant bears the burden of laying a basis, including explaining the delay
- Arguability of the intended appeal alone is not a ground for extension of time
Court orders
#- 1.The application dated 13th November 2018 is dismissed with costs to the respondent
- On appeal from
- Senior Resident Magistrate's Court, Mombasa
- CMCC No.4016 of 1996
- Jurisdiction invoked
- Sections 1A, 1B, 3B, 65 and 79G of the Civil Procedure Act; Order 42 Rule 6 of the Civil Procedure Rules; Articles 48, 50, 159(2)(d) and 259 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdul Ibrahim Musa v Rehema Badi Ali [2019] KEELC 235 (KLR)", Case Analysis (2019). Notice of Motion dated 13th November 2018 (arising from Mombasa RMCC No.4016 of 1996). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/235/eng@2019-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.