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ELCDismissed· [2020] KEELC 488 (KLR)

Thungutha Nkaratu v Tabitha Kanini Nkaratu [2020] KEELC 488 (KLR)

High Court of Kenya
1 December 2020
944 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court threw out a 97-year-old man's late appeal, ruling Covid-19 did not excuse a six-month delay in filing.

What this practically means

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Executive summary

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The applicant, a 97-year-old man, brought two applications dated 13th August 2020 under sections 3A, 63(e), 75 and 95 of the Civil Procedure Act and Order 43 Rule 2 of the Civil Procedure Rules, seeking extension of time to file an appeal out of time. A judgment had been delivered against him on 25th February 2020 at Chuka Law Courts with a 30-day stay of execution. He attributed the delay to the Covid-19 pandemic, scaled-down court services, loss of contact with his previous advocate, and his advanced age and vulnerability. The applications were canvassed by written submissions, but the applicant's advocate ultimately declined to file submissions, asking the court to rely on the pleadings; the respondent's advocate urged dismissal because the appellant had disobeyed a court order. The court deprecated the applicant's advocate's conduct as having delayed adjudication. Applying section 79B of the Civil Procedure Act (cited as 'Order 79B'), the judge found no sufficient ground for interfering with the lower court's decision and summarily rejected the appeal, with the result that the two applications automatically stood dismissed. Obiter, the court held the pandemic excuse unsatisfactory, since all court registries in Kenya had arrangements for registering urgent matters such as appeals, and the delay from February to August 2020 was inordinate. Costs were awarded to the respondent, following the event. Judgment was delivered at Chuka on 1st December 2020.

Key legal issues

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01

Whether summary rejection of the appeal under section 79B of the Civil Procedure Act was warranted

Holding

The court found no sufficient ground to interfere with the lower court's judgment and summarily rejected the appeal, which automatically dismissed the pending applications

Reasoning

The court invoked section 79B, which empowers a Judge to peruse an appeal from a subordinate court and reject it summarily if there is no sufficient ground for interfering with the decree or order appealed against. Having perused the matter, the judge found no such ground. The court also deprecated the conduct of the applicant's advocate, which delayed adjudication, and observed that even if reached, the pandemic excuse would fail because registries remained open for urgent filings and the delay from February to August 2020 was inordinate.

p. 2
02

Whether the Covid-19 pandemic and the applicant's age of 97 years justified extension of time to appeal

Holding

No; the excuse was unsatisfactory and the delay of nearly six months was inordinate

Reasoning

Although termed inconsequential in view of the primary finding, the court opined that the pandemic excuse was unsatisfactory because all court registries had arrangements for registering urgent matters including appeals. Judgment was delivered on 25th February 2020 and the application was not filed until 13th August 2020, constituting inordinate delay that would not have persuaded the court to extend time even if it had reached that question.

p. 2

Legal principles established

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  • Under section 79B of the Civil Procedure Act, a Judge of the High Court may summarily reject an appeal from a subordinate court where there is no sufficient ground for interfering with the decree or order appealed against
  • The Covid-19 pandemic did not excuse inordinate delay in filing appeals, as court registries had arrangements for registering urgent matters such as appeals

Court orders

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  1. 1.The appeal is rejected summarily
  2. 2.The two applications filed on 13th August, 2020 automatically stand dismissed
  3. 3.Costs shall follow the event and are awarded to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure ActSection 75
  • Civil Procedure ActSection 95
  • Civil Procedure ActSection 79B (cited as 'Order 79B')
  • Civil Procedure ActSection 79C
  • Civil Procedure RulesOrder 43 Rule 2
On appeal from
Subordinate court (Chuka Law Courts)
Not stated in the judgment
Jurisdiction invoked
Sections 3A, 63(e), 75 and 95 of the Civil Procedure Act, Order 43 Rule 2 of the Civil Procedure Rules, and section 79B of the Civil Procedure Act (cited as 'Order 79B')

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, "Thungutha Nkaratu v Tabitha Kanini Nkaratu [2020] KEELC 488 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/488/eng@2020-12-01

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