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ELCAllowedHoma-Bay ELC Civil Appeal (arising from Homa-Bay CMC Land Case No. 6 of 2016); Notice of Motion dated 4th February 2019· [2019] KEELC 4006 (KLR)

Benard Otieno Obunga v Lawrence Oguda Obunga [2019] KEELC 4006 (KLR)

Environment and Land Court of Kenya
20 March 2019
GOG.M.A. Ong'ondo
1,104 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a four-month late appeal because the man was never told judgment had been delivered against him.

What this practically means

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Executive summary

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The applicant, Benard Otieno Obunga, moved the Environment and Land Court at Migori by notice of motion dated 4th February 2019 under sections 1A, 1B, 3A and 79G of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking leave to file an appeal out of time against the judgment delivered on 25th September 2018 in Homa-Bay CMC Land Case No. 6 of 2016, together with costs. He explained that judgment was delivered without notice to his advocates, that the time for filing an appeal had elapsed before they learned of it, and that he had acted with speed to avoid inordinate delay; he annexed a draft memorandum of appeal and relied on Imperial Bank (Kanathor) and Muthumbi authorities. The respondent, Lawrence Oguda Obunga, opposed through grounds of opposition filed on 20th February 2019, arguing that the intended appeal raised no prima facie case, that litigation should end, and that the application was frivolous and an abuse of process. After hearing oral arguments under Order 51 Rule 16, G.M.A. Ong'ondo J held that the proviso to section 79G vests discretion in the court to admit appeals out of time on good and sufficient cause; that the roughly four-month delay was not unreasonable given lack of notice of the judgment and the applicant's prompt action, citing Naomi Wangechi Gitonga; and that the memorandum of appeal raised arguable issues concerning ownership of LR NO. EAST/KANYADA/KANYADIER/3465 and the defence before the trial court. The court allowed the motion in the terms sought and ordered costs of the application to be in the cause.

Key legal issues

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01

Good and sufficient cause for delay in filing appeal out of time

Holding

A four-month delay explained by delivery of judgment without notice to the applicant and his advocates, with the applicant acting with speed, constitutes good and sufficient cause.

Reasoning

The court applied the proviso to section 79G of the Civil Procedure Act, adopting Black's Law Dictionary's definition of good cause as a legally sufficient cause. It found the delay of about four months not unreasonable because judgment was delivered without notice to the applicant's advocate and the applicant moved with speed once he learned of the judgment, supported by the Naomi Wangechi Gitonga decision.

p. 2
02

Arguability of the intended appeal

Holding

The intended appeal raises arguable issues including ownership of the suit land and the nature of the defence filed before the trial court, and the applicant cannot be shut out of a fair hearing.

Reasoning

The court examined the memorandum of appeal and found it raised issues of ownership of LR NO. EAST/KANYADA/KANYADIER/3465 and the nature of the defence filed before the trial court. Relying on Imperial Bank (Kanathor) and Muthumbi decisions and Articles 50(1) and 23(c) of the Constitution, it held the appeal arguable and the applicant entitled to his day in court.

p. 2

Legal principles established

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  • It is within the discretion of the court to admit an appeal out of time where the appellant shows good and sufficient cause for not filing in time.
  • The court's discretion is exercised to preserve claims so they may be heard and determined according to law.

Court orders

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  1. 1.Leave granted to the applicant to file his appeal out of time against the judgment in Homa-Bay CMC Land Case No. 6 of 2016 in the terms sought in the notice of motion dated 4th February 2019
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Act (Cap 21 Laws of Kenya)Section 1A
  • Civil Procedure Act (Cap 21 Laws of Kenya)Section 1B
  • Civil Procedure Act (Cap 21 Laws of Kenya)Section 3A
  • Civil Procedure Act (Cap 21 Laws of Kenya)Section 79G
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 23(c)

Cases cited (4)

  • Imperial Bank Ltd (in Receivership) & Kanother v Alnashir Popat & 18 others
    (2018) eKLR
  • Samwel Mwaura Muthumbi v Josephine Wanjiru Ngugi and another
    (2018) eKLR
  • Oraro v Mbaja
    (2008) 1 KLR 142
  • Naomi Wangechi Gitonga and 3 others v IEBC and 17 others
    (2018) eKLR
On appeal from
Chief Magistrate's Court, Homa Bay
CMC Land Case No. 6 of 2016
Jurisdiction invoked
Sections 1A, 1B, 3A and 79G of the Civil Procedure Act (Cap 21); Order 51 Rule 1 of the Civil Procedure Rules, 2010; Article 162(2)(b) of the Constitution of Kenya, 2010

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, "Benard Otieno Obunga v Lawrence Oguda Obunga [2019] KEELC 4006 (KLR)", Case Analysis (2019). Homa-Bay ELC Civil Appeal (arising from Homa-Bay CMC Land Case No. 6 of 2016); Notice of Motion dated 4th February 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4006/eng@2019-03-20

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