Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedAppeal arising from Mombasa CMCC No. 1613 of 2016 (Memorandum of Appeal dated 8th August 2017)· [2019] KEELC 4299 (KLR)

Hamisa Swaleh v Rama Swaleh & another [2019] KEELC 4299 (KLR)

High Court of Kenya
7 March 2019
CYC.K. Yano
1,143 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The High Court struck out an appeal filed 54 days late because the appellant never asked for an extension of time before filing.

What this practically means

#

Executive summary

#
This was a Notice of Motion dated 27th June 2018 filed by the Respondent, Rama Swaleh, seeking striking out of the Appellant's Memorandum of Appeal dated 8th August 2017 and Record of Appeal dated 26th February 2018 on the grounds that the appeal was filed out of time, was incompetent, and that the Respondent was never given notice of it. The appeal lay from a ruling of Hon. L. T. Lewa, Senior Resident Magistrate, in Mombasa RMCC No. 1613 of 2016, delivered in the absence of both parties. The Appellant, who learned of the dismissal of her case about two months later upon tracing the file from the archives, filed her Memorandum of Appeal on 4th October 2017, roughly 54 days after the ruling, without any application for leave to file out of time. The Respondent argued the appeal was statute-barred under Section 79G of the Civil Procedure Act and that Article 159 of the Constitution could not cure the procedural defects, relying on Asma Ali Mohamed v Fatime Mwinyi Juma and the Salat case. The court held there was no doubt the appeal was out of time, that the appellant ought to have formally applied for extension of time demonstrating good and sufficient cause, and that neither late knowledge of the ruling nor counsel's alleged failure could excuse blatant non-observance of the law. The court struck out the Memorandum and Record of Appeal with costs to the applicant.

Key legal issues

#
01

Filing of appeal out of time without leave under Section 79G of the Civil Procedure Act

Holding

The Memorandum of Appeal filed 54 days after the ruling was out of time and incompetent, no leave having been sought; the appeal was struck out.

Reasoning

The court found the ruling was delivered on 21st July 2017 in the absence of both parties, so the appeal was due by 21st August 2017 at the latest. It was filed on 4th October 2017. The appellant's claim of late learning of the ruling did not excuse filing without a formal application for extension of time under the proviso to Section 79G. Nor could counsel's negligence or Article 159 of the Constitution cure the defect.

p. 2

Legal principles established

#
  • An appeal from a subordinate court must be filed within 30 days under Section 79G of the Civil Procedure Act, and an out-of-time appeal may only be admitted if the appellant satisfies the court of good and sufficient cause, on a formal application for leave.

Court orders

#
  1. 1.The Memorandum of Appeal dated 8th August 2017 and the Record of Appeal dated 26th February 2018 are struck out with costs to the applicants

Authorities

#

Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 Rule 12
  • Constitution of KenyaArticle 159

Cases cited (2)

  • Asma Ali Mohamed –v- Fatime Mwinyi Juma
    Civil Appeal No. 75 of 2014
  • Nicholas Kiptoo Arap Korir Salat –v- Independent Electoral and Boundaries Commission & 6 Others
    (2013) eKLR
On appeal from
Senior Resident Magistrate's Court, Mombasa
RMCC No. 1613 of 2016
Jurisdiction invoked
Section 79G of the Civil Procedure Act (appeals from subordinate courts to the High Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hamisa Swaleh v Rama Swaleh & another [2019] KEELC 4299 (KLR)", Case Analysis (2019). Appeal arising from Mombasa CMCC No. 1613 of 2016 (Memorandum of Appeal dated 8th August 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4299/eng@2019-03-07

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