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ELCDismissedExtension-of-time application dated 2nd October 2020 (arising from Mumias SPM ELC No. 14 of 2020)· [2020] KEELC 359 (KLR)

Windrick Oparanya Wamukoya v Bonventure Oundo Mbanda [2020] KEELC 359 (KLR)

High Court of Kenya
9 December 2020
1,444 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 Kakamega refused a Kenyan litigant permission to appeal late, ruling that losing touch with your lawyer and unpaid fees are not valid excuses.

What this practically means

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Executive summary

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This was an application dated 2nd October 2020, brought under Sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, seeking leave to file an appeal out of time against a ruling delivered electronically on 25th June 2020 in Mumias SPM ELC No. 14 of 2020. The applicant, who was the plaintiff in that suit, explained the delay by loss of contact with his advocates, late supply of typed proceedings owing to Covid-19 restrictions and the temporary closure of Kakamega Law Courts, and inability to settle legal fees until late September 2020. The respondents opposed, contending the delay of about 80 days was inordinate; that the court closure occurred after the filing deadline had already lapsed; that legal fees were a private matter between advocate and client; and that the intended appeal had no chance of success because the trial suit had been dismissed as res judicata of Kakamega ELC No. 171 of 2017. The court applied section 79G of the Civil Procedure Act and the four-factor test in Paul Musili Wambua v Attorney General & 2 others (2015) eKLR. It held that losing touch with one's advocate and unpaid legal fees are not valid excuses, that the lower court proceedings were unnecessary at the filing stage, and that the intended appeal had no chances of success given the res judicata finding. The application was dismissed with costs. Delivered, dated and signed at Kakamega on 9th December 2020 by N.A. Matheka, Judge.

Key legal issues

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01

Good and sufficient cause under section 79G

Holding

Loss of contact with one's advocate and delayed settlement of legal fees are not valid excuses for late filing

Reasoning

The court weighed the four Wambua factors: length of delay (appeal due 24th July 2020, application filed 9th October 2020), the reasons given (lost touch with lawyers, unpaid fees, court closure, late proceedings), chances of success, and prejudice. It found the explanations unacceptable, noted proceedings were not necessary at the point of filing, and concluded no good and sufficient cause was shown.

p. 2
02

Chances of success of the intended appeal

Holding

The intended appeal had no chances of success because the trial suit was dismissed as res judicata of Kakamega ELC No. 171 of 2017

Reasoning

The court observed that the suit from which the appeal was intended was dismissed for being res judicata, the parties and subject matter being the same as in Kakamega ELC No. 171 of 2017, a matter decided by the same court. Accordingly the intended appeal was futile and extension of time would serve no purpose.

p. 2

Legal principles established

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  • 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, acting on reasons not whims or caprice

Court orders

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  1. 1.The application dated 2nd October 2020 seeking leave to file appeal out of time is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure Act Cap 21Section 1A
  • Civil Procedure Act Cap 21Section 1B
  • Civil Procedure Act Cap 21Section 3A
  • Civil Procedure Act Cap 21Section 79G
  • Civil Procedure Act Cap 21Section 95
  • Civil Procedure Rules 2010Order 51

Cases cited (1)

  • Paul Musili Wambua v Attorney General & 2 others
    (2015) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act Cap 21 and Order 51 of the Civil Procedure Rules 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, "Windrick Oparanya Wamukoya v Bonventure Oundo Mbanda [2020] KEELC 359 (KLR)", Case Analysis (2020). Extension-of-time application dated 2nd October 2020 (arising from Mumias SPM ELC No. 14 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/359/eng@2020-12-09

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