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ELCDismissedNot stated (application dated 9th March 2020, arising from Butali MLEC No. 76 of 2018)· [2020] KEELC 1251 (KLR)

Solomon Onzere Tsisaga v Enos Magambo Angweya & 3 others [2020] KEELC 1251 (KLR)

High Court of Kenya
28 September 2020
787 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 refused to let a litigant file his appeal late because he waited four months without explaining why.

What this practically means

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Executive summary

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The applicant, Solomon Onzere Tsisaga, moved the High Court at Kakamega by an application dated 9th March 2020 seeking leave to file an appeal out of time against the ruling of E.W. Muleka SRM delivered on 5th September 2019 in Butali MLEC No. 76 of 2018, in which a preliminary objection had succeeded. He explained that neither he nor his advocate was notified of the ruling; he applied for proceedings on 6th January 2020 upon learning of it, and the proceedings were supplied on 6th February 2020. The respondents opposed, contending both advocates were present when the ruling was delivered, that the delay explanation was false, and that the underlying dispute concerned restoration of a boundary over Kakamega/Lugari/297, 745, 746, 1321 and 2389, a matter within the exclusive jurisdiction of the Land Registrar and District Surveyor. The court applied section 79G of the Civil Procedure Act and the factors in Paul Musili Wambua v Attorney General & 2 others (2015) eKLR: length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent. Finding from the record that both counsels were present at the hearing of the preliminary objection, and that the applicant sat back for four months, the court held that good and sufficient cause for the delay was not demonstrated. The application was dismissed with costs.

Key legal issues

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01

Whether the applicant had good and sufficient cause for not filing the appeal within 30 days under section 79G of the Civil Procedure Act

Holding

No good and sufficient cause was demonstrated; the explanation that the applicant and his advocate were unaware of the ruling was disbelieved, since both counsels were present when the preliminary objection ruling was delivered and the applicant waited four months.

Reasoning

The court found from the record that both counsel were present at the hearing of the preliminary objection. Even if the applicant was unaware the ruling had been delivered, his inaction for four months until 6th January 2020 was unexplained. The court exercised its discretion on the settled Wambua factors and found the delay unjustified, dismissing the application with costs.

p. 2

Legal principles established

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  • In deciding whether to grant an extension of 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.

Court orders

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  1. 1.The application dated 9th March 2020 seeking leave to file an appeal out of time is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G

Cases cited (1)

  • Paul Musili Wambua v Attorney General & 2 others
    (2015) eKLR
Jurisdiction invoked
Section 79G of the Civil Procedure Act (extension of time to appeal out of time)

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, "Solomon Onzere Tsisaga v Enos Magambo Angweya & 3 others [2020] KEELC 1251 (KLR)", Case Analysis (2020). Not stated (application dated 9th March 2020, arising from Butali MLEC No. 76 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1251/eng@2020-09-28

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