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ELCPartially AllowedCase No 32 of 2015· [2020] KEELC 1414 (KLR)

Godfrey Oduori Ondero v Redemptor Teddy Were & another [2020] KEELC 1414 (KLR)

High Court of Kenya
20 August 2020
884 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling by A. Omollo J of the High Court at Busia on a notice of motion dated 30th June 2020 brought under Section 7 of the Appellate Jurisdiction Act and Rules 4, 42 and 75 of the Court of Appeal Rules. The applicant, who had lost a judgment delivered on 15th April 2020, sought extension of time to file a notice of intention to appeal and an appeal to the Court of Appeal, and a stay of execution of the decree (taxed costs). He explained that judgment was delivered by email during COVID-19 restrictions; he was resident in Budalangi and his advocate in Busia, and movement and transport restrictions prevented them from meeting to take instructions until the statutory period had lapsed. The defendants opposed through grounds of opposition alleging abuse of process, absence of anything in the decree to be stayed, and lack of security for costs, though in submissions they did not oppose extension of time and suggested a Kshs. 200,000 deposit as security. Relying on section 7 of Cap 9 as set out in prior authorities, the court found the COVID-19 explanation for the delay reasonable, noting the suspension of open court operations on 16/3/2020 and the suspension of public transport. The court extended time by fourteen days to file the notice of appeal and granted stay of execution of taxed costs conditional on the applicant depositing 50% of taxed costs into a joint escrow account within 60 days. Each party was ordered to bear their own costs of the application. The application was therefore partially allowed.

Key legal issues

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01

Whether the delay in filing the notice of appeal was excusable

Holding

The delay was excusable because COVID-19 restrictions and the suspension of court and transport operations reasonably prevented the applicant, resident in Budalangi, from meeting his advocate in Busia to receive instructions; the respondents also did not object to extension

Reasoning

The court took judicial notice of the outbreak of COVID-19 in March 2020, the Chief Justice's suspension of open court operations from 16/3/2020, and the President's suspension of public transport until June 2020. Against that factual backdrop, the applicant's inability to consult counsel was found reasonable, and the lack of respondents' objection reinforced the exercise of discretion in the applicant's favour.

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02

Whether stay of execution of the taxed costs should issue pending appeal

Holding

Stay was granted in the interest of justice, but balanced against the respondents' interests by conditioning it on a 50% deposit of taxed costs into a joint escrow account

Reasoning

The applicant sought stay of execution of costs taxed on 8/7/2020 so as to pursue his appeal. The court held that it was in the interest of justice that stay be given, but took note of the defendants/respondents' interests and directed a conditional deposit of 50% of taxed costs in an escrow account in the joint names of counsel, to be made within 60 days.

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Legal principles established

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  • The High Court may extend time for giving notice of intention to appeal even after the statutory period has expired
  • Delay occasioned by COVID-19 movement restrictions preventing an applicant from meeting counsel is a reasonable explanation warranting extension of time

Court orders

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  1. 1.Time extended within which to file notice of appeal against the judgment of 15th April 2020, FOURTEEN (14) days from the date of the ruling
  2. 2.Stay of execution of taxed costs granted, conditional on the applicant depositing 50% of taxed costs in an escrow account opened in the joint names of the advocates on record, within 60 days from the date of the ruling
  3. 3.Each party to bear their own costs of the application

Authorities

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Legislation

  • Appellate Jurisdiction Act (Cap 9)Section 7
  • Court of Appeal RulesRules 4, 42 and 75

Cases cited (2)

  • Edward Njane Nga'ng'a & Ano Vs Damaris Wanjiku Kamau & Ano
    (2016) eKLR
  • Loise Chemutai Ngurule & Ano Vs Winfred Leshwari Kimung'en & 2 others
    (2015) eKLR
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act (Cap 9) and Rules 4, 42 and 75 of the Court of Appeal Rules

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, "Godfrey Oduori Ondero v Redemptor Teddy Were & another [2020] KEELC 1414 (KLR)", Case Analysis (2020). Case No 32 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1414/eng@2020-08-20

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