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ELCAllowednot stated in the judgment excerpt· [2020] KEELC 710 (KLR)

Rabeccah Mwikali Jacob v Peter Nicholas Mutuku & 2 others [2020] KEELC 710 (KLR)

High Court of Kenya (Environment and Land Court)
6 November 2020
OAO. A. Angote
1,423 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a party who missed a judgment deadline during COVID-19 to still appeal, showing pandemic delays can be excused.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the court by an application dated 17th June, 2020 seeking leave to lodge an appeal out of time against a judgment delivered on 24th April, 2020, an order deeming the appeal as properly filed, and costs. She deponed that she was unaware of the electronic delivery of the judgment because neither she nor her counsel could attend due to the COVID-19 pandemic and cessation-of-movement directives, and that she only learnt of the judgment on 15th June, 2020 when courts scaled up operations. The Respondents filed no response; only the Applicant's submissions were on record. Counsel relied on Order 50 Rule 6 of the Civil Procedure Rules and the Salat decision on extension of time. The court held that since the intended appeal was to the Court of Appeal against the High Court's own decision, the application was wrongly anchored on Order 42 Rule 6, Order 51 of the Civil Procedure Rules and Section 79G of the Civil Procedure Act; the correct provision was Section 7 of the Appellate Jurisdiction Act read with Rule 75 of the Court of Appeal Rules. Applying the Salat and Fakir Mohammed principles, the court found the reasons for the delay plausible given the pandemic and scaled-down court operations, and noted the application was filed within two months of the judgment. The application was allowed: leave was granted to lodge the Notice of Appeal out of time, to be filed within fourteen days, with each party bearing their own costs.

Key legal issues

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01

Whether the delay of approximately two months in seeking leave to appeal out of time was sufficiently explained

Holding

The reasons for the delay were plausible given the COVID-19 pandemic, scaled-down court operations, and electronic delivery of judgment, and the application was filed within two months of the decision

Reasoning

The judgment was delivered electronically on 24th April 2020 during a presidential directive on cessation of movement in and out of Nairobi due to COVID-19. The Applicant and her counsel could not attend and only learnt of the judgment on 15th June 2020 when courts scaled up operations. The court found these reasons plausible and noted the judgment was not delivered in open court as per the Civil Procedure Rules due to the pandemic. The application was filed within two months of the decision, which weighed in favour of allowing it.

p. 2
02

The correct statutory basis for an application to extend time to lodge an appeal to the Court of Appeal against a High Court decision

Holding

Section 7 of the Appellate Jurisdiction Act is the correct provision; reliance on Order 42 Rule 6, Order 51 and Section 79G of the Civil Procedure Act was erroneous

Reasoning

The Applicant sought leave to file an appeal to the Court of Appeal challenging the High Court's own decision. The court held it was erroneous for counsel to anchor the application on Order 42 Rule 6, Order 51 of the Civil Procedure Rules and Section 79G of the Civil Procedure Act, and identified Section 7 of the Appellate Jurisdiction Act, read with Rule 75 of the Court of Appeal Rules, as the applicable framework for extending time for giving notice of intention to appeal.

p. 2

Legal principles established

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  • Extension of time is an equitable remedy available to a deserving party at the discretion of the court, guided by the Salat principles
  • The relevant provision for extending time to appeal against a High Court decision is Section 7 of the Appellate Jurisdiction Act, not Order 42 Rule 6 of the Civil Procedure Rules

Court orders

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  1. 1.Leave granted to the Plaintiff to lodge her Notice of Appeal out of time
  2. 2.The Notice of Appeal to be filed within fourteen (14) days of the date of the Ruling
  3. 3.Each party to bear his/her own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51
  • Civil Procedure ActSection 79G
  • Appellate Jurisdiction ActSection 7
  • Court of Appeal RulesRule 75

Cases cited (2)

  • Nicholas Kiptoo Arap Korir Salat vs. The Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
  • Fakir Mohammed vs. Joseph Mugambi & 2 Others
    Civil Application No. NAI 332 of 2004 (unreported)
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rabeccah Mwikali Jacob v Peter Nicholas Mutuku & 2 others [2020] KEELC 710 (KLR)", Case Analysis (2020). not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/710/eng@2020-11-06

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