Joseph Mwirigi M’Ithiri v Solomon Gichuru Maugo [2020] KEELC 339 (KLR)
The bottom line
#A Kenyan court refused to forgive a year-long appeal delay because waiting for certified court copies is not a valid excuse.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant explained the delay in filing the appeal out of time
The delay of more than one year was not satisfactorily explained; the excuse of waiting for certified proceedings was a misconception of the law
Section 79G requires appeals from subordinate courts to be filed within thirty days of the decree, excluding certified time for copies. The applicant claimed ignorance of the judgment until August 2018 and non-supply of proceedings until June 2019, but under Order 42 a memorandum of appeal suffices without certified copies. The application was only filed on 18.10.2019, leaving over a year unexplained, so the equitable discretion could not be exercised in the applicant's favour.
Nature of the discretion to extend time
Extension of time is not a right but an equitable remedy for a deserving party, considered case by case
Relying on Fahim Yasin Twaha vs Timamy Issa Abdalla & 2 Others [2015] eKLR, the court held that a party seeking extension bears the burden of laying a basis to the satisfaction of the court, and whether the discretion is exercised is decided case by case. The applicant's explanation failed to meet that burden.
Legal principles established
#- Extension of time is an equitable remedy available at the court's discretion only to a deserving party, who must lay a basis for it
- An appeal to the High Court under Order 42 of the Civil Procedure Rules is instituted by merely filing a memorandum of appeal, which need not be accompanied by a certified copy of the decree or order appealed against
Court orders
#- 1.The application dated 17.10.2019 is dismissed with costs to the respondent
- 2.The consent order for stay of execution lapses
- On appeal from
- Chief Magistrate's Court, Meru
- Meru CMCC NO. 77 OF 2016
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act; Order 50 Rule 6 and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mwirigi M’Ithiri v Solomon Gichuru Maugo [2020] KEELC 339 (KLR)", Case Analysis (2020). Meru ELC Miscellaneous Application (application dated 17.10.2019, filed 18.10.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/339/eng@2020-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.