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ELCAllowedRuling dated 9th October 2020 arising from Kitui CMCC No. 12 of 2019· [2020] KEELC 1017 (KLR)

Ravas Paul Kyalo Mutisya v Kenya National Highways Authority & another [2020] KEELC 1017 (KLR)

High Court of Kenya
9 October 2020
OAO.A. Angote
1,458 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 allowed a late appeal where the delay was only four days and explained by a change of advocates.

What this practically means

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Executive summary

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This was an application under the proviso to Section 79G of the Civil Procedure Act seeking leave to file an appeal out of time from a Ruling of the Chief Magistrate's Court at Kitui delivered on 31st October 2019, which had upheld a preliminary objection and dismissed the Applicant's suit with costs. The Applicant explained the delay (four days beyond the 28th/30th November 2019 deadline) by reference to a change of advocates from M/s Mochere & Co Advocates to M/s Momanyi and Co. Advocates, with the Notice of Change effected on 29th October 2019, and argued that his counsel had not been served with notice of the date of the Ruling. The 1st Respondent opposed, describing the application as frivolous, vexatious and an abuse of process, and contending that no certified copy of the decree accompanied the memorandum of appeal and that there was no automatic right of appeal under Order 43 of the Civil Procedure Rules. The court identified a single issue: whether extension of time should be granted. Applying the factors in Mwangi v Kenya Airways Ltd (period and reason for delay, arguability, prejudice, compliance with time limits and public interest), the court found the four-day delay was not inordinate and was sufficiently explained by the change of advocates. The application dated 4th December 2019 was allowed, with leave granted to file the memorandum of appeal within fourteen days, and each party ordered to bear its own costs.

Key legal issues

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01

Whether the Applicant established good and sufficient cause under the proviso to Section 79G of the Civil Procedure Act for filing the appeal out of time

Holding

Yes; the four-day delay occasioned by the change of advocates was neither inordinate nor unexplained, and extension of time was warranted.

Reasoning

Section 79G requires appeals from subordinate courts to the High Court to be filed within thirty days, unless the appellant shows good and sufficient cause. The court applied the Mwangi v Kenya Airways factors: length and reason for the delay, arguability, prejudice and public interest. The record showed the Applicant's advocate was present when the Ruling was delivered on 29th October 2019 and sought leave to come on record; the delay was only four days and was thus explained.

p. 2

Legal principles established

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  • The power to grant leave to file an appeal out of the statutory period is discretionary and must be exercised judiciously upon sufficient material being placed before the court.
  • A short delay of a few days, explained by a change of advocates, is not inordinate and may be sufficiently explained.

Court orders

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  1. 1.Leave granted to the Applicant to file his Memorandum of Appeal out of time, and in any event within fourteen (14) days of the date of the Ruling
  2. 2.Each party to bear his/its own costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 43

Cases cited (4)

  • Itute Ingu & Anor vs. Isumael Mwakavi Mwendwa
    (1994) eKLR
  • Leo Sila Mutiso vs. Rose Hellen Wangare Mwangi
    Civil Application No. NAI 255 of 1997 (ur)
  • Mwangi vs. Kenya Airways Ltd
    [2003] KLR
  • Lawrence Nguthiru Riccardahw vs. George Ndirangu
    (2015) eKLR
On appeal from
Chief Magistrate's Court at Kitui
Kitui CMCC No. 12 of 2019
Jurisdiction invoked
Section 79G of the Civil Procedure Act (proviso permitting admission of an appeal out of time for good and sufficient cause)

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, "Ravas Paul Kyalo Mutisya v Kenya National Highways Authority & another [2020] KEELC 1017 (KLR)", Case Analysis (2020). Ruling dated 9th October 2020 arising from Kitui CMCC No. 12 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1017/eng@2020-10-09

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