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ELCDismissedNot stated in the judgment· [2020] KEELC 322 (KLR)

Joshua Kimathi Guantai v John Maingi Kirera [2020] KEELC 322 (KLR)

High Court of Kenya
14 December 2020
LMLucy N. Mbugua
629 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Meru refused to extend time for an appeal because the applicant waited eight months without adequately explaining the delay.

What this practically means

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Executive summary

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This was a ruling on a notice of motion seeking leave to file an appeal out of time against the judgment and decree of the Principal Magistrate's Court at Githongo dated 31 May 2019 in Githongo ELC Suit No. 22 of 2017. The application was brought under Sections 1A, 1B, 3A and 79G of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. The applicant contended that he applied for the court proceedings within three days of the judgment and, after repeated follow-ups, his advocate was only recently supplied with a signed but uncertified copy. The respondent opposed, alleging that the letter requesting proceedings bore an altered date, having been received at the registry on 7 July 2019, that the applicant had not shown how he was frustrated at Githongo court, and that the delay of almost a year was unexplained. The court restated the statutory thirty-day timeline under Section 79G and the principle from Fahim Yasin Twaha vs Timamy Issa Abdalla & 2 Others that extension of time is an equitable, discretionary remedy for which the applicant bears the burden of laying a basis. The court found that, apart from one letter, the applicant gave no evidence of follow-ups and never applied for a certificate of delay, and that filing a memorandum of appeal was all that was required to lodge an appeal. The roughly eight-month delay was held inordinate and unexplained, and the application was dismissed with costs to the respondent. The judgment was delivered electronically pursuant to COVID-19 practice directions, with compliance with Order 21 Rule 1 deemed waived.

Key legal issues

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Whether the applicant satisfied the conditions for extension of time to appeal under Section 79G of the Civil Procedure Act

Holding

The application was dismissed because the applicant failed to explain the approximately 8-month delay satisfactorily and did not demonstrate diligence in obtaining the proceedings.

Reasoning

Section 79G requires an appeal from a subordinate court to be filed within thirty days of the decree, excluding time certified as requisite for preparing a copy. Apart from one letter, the applicant gave no evidence of follow-ups and never applied for a certificate of delay. Relying on Fahim Yasin Twaha, extension of time is discretionary and equitable, requiring the applicant to lay a basis. The court found the delay of July 2019 to February 2020 inordinate and unexplained, and held the application unmerited.

p. 1

Legal principles established

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  • Extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the Court, and the applicant bears the burden of laying a basis for the exercise of that discretion.
  • In lodging an appeal from a subordinate court, a party is required to file the memorandum of appeal within the statutory period; obtaining proceedings is not a prerequisite to filing the appeal.

Court orders

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  1. 1.The notice of motion seeking leave to file an appeal out of time is dismissed
  2. 2.Costs of the application to the respondent

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 51 Rule 1
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (3)

  • AIG Insurance Company Limited vs. Michael Okoth
    (2018) eKLR
  • Genesio Mutwiri Mwereria vs Augustus Kabira M’Muraga
    Meru Elc Misc Appl No. 31 of 2018
  • Fahim Yasin Twaha vs Timamy Issa Abdalla & 2 Others
    [2015] eKLR
On appeal from
Principal Magistrate's Court, Githongo
Githongo ELC Suit No. 22 of 2017
Jurisdiction invoked
Sections 1A, 1B, 3A and 79G of the Civil Procedure Act and Order 51 Rule 1 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, "Joshua Kimathi Guantai v John Maingi Kirera [2020] KEELC 322 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/322/eng@2020-12-14

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