Kithyo Kata & 2 others v Martin Mukosi Ngaa & another [2020] KEELC 1054 (KLR)
The bottom line
#A Kenyan court excused a two-day delay in filing an appeal, confirming you don't need typed court proceedings before filing your memorandum of appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the two-day delay in filing the Memorandum of Appeal should be excused
The delay of two days was not inordinate and the explanation was excusable; no prejudice to the Respondents was shown
Judgment was delivered on 8th August 2019 and the Memorandum of Appeal was filed on 12th September 2019. The court found the two-day delay not inordinate. The advocate's mistaken belief that typed proceedings were required explained the delay, and the Respondents did not demonstrate prejudice if the extension was granted.
Whether typed proceedings are a prerequisite for filing an appeal under Section 79G
Typed proceedings are not required; only time taken to extract a certified Decree or Judgment is excluded
The court read Section 79G and held that the memorandum of appeal may be filed without proceedings. The only excluded time is that certified as requisite for preparation and delivery of a copy of the decree or order. The applicants' advocate laboured under a mistaken belief that typed proceedings were necessary.
Legal principles established
#- In deciding whether to extend time for appealing, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding and the prejudice to the respondent
- A party does not need typed proceedings to file a Memorandum of Appeal; only the time taken to extract a certified Decree or Judgment is excluded from computation of time
Court orders
#- 1.Time be and is hereby enlarged for the Applicants to file the Memorandum of Appeal out of time
- 2.The Memorandum of Appeal dated 6th September, 2019 be and is hereby deemed as having been properly filed and served on the Respondents
- 3.The costs of the Application to be in the cause
- On appeal from
- Chief Magistrate's Court, Machakos
- Machakos CMCC ELC No. 81 of 2018
- Jurisdiction invoked
- Sections 3A and 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithyo Kata & 2 others v Martin Mukosi Ngaa & another [2020] KEELC 1054 (KLR)", Case Analysis (2020). ELC Case No. 81 of 2018 (Application dated 11th September, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1054/eng@2020-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.