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ELCDismissedKakamega High Court Misc. Application dated 30th May 2019 (arising from Kakamega MCL & E. No. 86 of 2018)· [2019] KEELC 709 (KLR)

Rose Mukonda Opanda & 3 others v Leonida Omukoyia Nyangweso [2019] KEELC 709 (KLR)

High Court of Kenya
26 November 2019
NMN.A. Matheka
933 words in judgment
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The bottom line

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The High Court in Kakamega dismissed an attempt to file a late land appeal, ruling that two months of unexplained inaction did not justify missing the 30-day deadline.

What this practically means

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Executive summary

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The applicants, led by Rose Mulonda Opanda, moved the High Court at Kakamega by an application dated 30th May 2019 under Sections 1A, 1B, 3A and 79G of the Civil Procedure Act and Order 50 rule 6 of the Civil Procedure Rules, seeking leave to file an appeal out of time against a ruling delivered on 19th March 2019 by Hon. Wandere in Kakamega MCL & E. No. 86 of 2018, which restrained them from interfering with the suit property Butsotso/Esumeyia/1102. They attributed the delay to lack of knowledge of the ruling, asserting they only learned of it on 21st May 2019 when served with the orders. The respondent opposed, submitting that the appeal had been overtaken by events because the applicants had already successfully reviewed the order in Kakamega High Court ELC No. 33 of 2019, and that all counsel were aware of the ruling date fixed on 22nd January 2019. The court applied Section 79G and the principles in Paul Musili Wambua v Attorney General & 2 others [2015] eKLR on extension of time. Examining the record, the court found that counsel for the plaintiff and the 1st applicant were present at the delivery of the ruling, and held that even absent such knowledge, two months of inaction was inexcusable. Good and sufficient cause having not been demonstrated, the application was dismissed with costs on 26th November 2019.

Key legal issues

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01

Whether the applicants demonstrated good and sufficient cause for the delay in filing the appeal

Holding

The application fails; counsel for the applicants was present at delivery of the ruling and no acceptable explanation for the two-month delay was given

Reasoning

The court examined the record and found that counsel for the plaintiff and the 1st applicant were present when the ruling was delivered on 19th March 2019, contradicting the claim of ignorance. Even if unaware, the applicants' two months of inaction until service of the order was unexplained. The applicants had also pursued review in Kakamega High Court ELC No. 33 of 2019, which the respondent said rendered the appeal moot.

p. 2

Legal principles established

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  • An appeal from a subordinate court must be filed within thirty days unless the appellant shows good and sufficient cause for admitting it out of time
  • In deciding whether to extend time, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding and the degree of prejudice to the respondent

Court orders

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  1. 1.The application for leave to file an appeal out of time is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 50 rule 6

Cases cited (1)

  • Paul Musili Wambua v Attorney General & 2 others
    [2015] eKLR
On appeal from
Kakamega subordinate court
Kakamega MCL & E. No. 86 of 2018
Jurisdiction invoked
Sections 1A, 1B, 3A and 79G of the Civil Procedure Act and Order 50 rule 6 of the Civil Procedure Rules

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, "Rose Mukonda Opanda & 3 others v Leonida Omukoyia Nyangweso [2019] KEELC 709 (KLR)", Case Analysis (2019). Kakamega High Court Misc. Application dated 30th May 2019 (arising from Kakamega MCL & E. No. 86 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/709/eng@2019-11-26

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