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ELCPartially AllowedBungoma Civil Appeal (extension of time application) — Notice of Motion dated 25th November 2019, arising from BUNGOMA CMCC NO 272 OF 2011· [2020] KEELC 3073 (KLR)

Moses Lumbasi Simiyu & another v John Kaptoo Ngeywo & another [2020] KEELC 3073 (KLR)

High Court of Kenya
12 March 2020
2,904 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court let late appeal filers proceed because a one-month delay was explained, but ordered their lawyer to personally pay the costs.

What this practically means

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Executive summary

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This was a Notice of Motion dated 25th November 2019, filed on 5th December 2019, seeking leave to appeal out of time against the judgment of the Senior Resident Magistrate in Bungoma CMCC No 272 of 2011 delivered on 4th October 2019, under Sections 1A, 1B, 3, 3A and 79G of the Civil Procedure Act and Orders 50 Rule 6 and 51 Rule 1 of the Civil Procedure Rules. The Applicants explained the delay through their counsel, Mr Ocharo Kebira, who deponed that his nomination by the Judicial Service Commission as a judge of the Employment and Labour Relations Court, the handover of his firm, and his clerk Brian's oversight caused the appeal not to be filed in time. The 1st Respondent, John Kaptoo Ngeyo, opposed, alleging the application was based on falsehoods, that the delay was unexplained, and that the Respondents would be prejudiced having paid counsel Kshs. 100,000/=; he sought thrown-away costs of Kshs. 100,000/=. The Court applied Section 79G's proviso on good and sufficient cause, guided by Bagajo v Christian Children Fund Inc and the Salat principles, and distinguished Martin Wanjala Wafula, which involved about a year's unexplained delay. It held the roughly one-month delay was not inordinate and was satisfactorily explained; that a party should not suffer for counsel's mistake (Chemwolo v Kubende); that the clerk Brian had been named, contradicting the Respondent's claim; that the Respondents, having themselves filed Bungoma Civil Appeal No 99 of 2019 against the same judgment, suffered no prejudice; and that the intended appeal was arguable, particularly on the award of Kshs. 200,000/= for loss of land and breach of trust not sought in the pleadings. The Court allowed the application, directed that the appeal be filed within 7 days, and awarded the Respondents throw-away costs of Kshs. 10,000/= payable personally by the Applicants' counsel.

Key legal issues

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01

Good and sufficient cause under Section 79G CPA

Holding

The delay of about one month was not inordinate and was satisfactorily explained; a good basis was laid for exercising the Court's discretion

Reasoning

The Court applied Section 79G's proviso and the Bagajo and Salat principles. Counsel's failure to file arose from his nomination as a judge, handover of his firm, leave, and his clerk Brian's oversight. Counsel took full responsibility, and a party should not suffer for counsel's mistake per Chemwolo v Kubende.

p. 4
02

Prejudice to Respondents

Holding

No cognisable prejudice: the Respondents had themselves appealed the same judgment in Bungoma Civil Appeal No 99 of 2019 and no evidence of the alleged Kshs. 100,000/= payment was availed

Reasoning

The Respondents claimed they had paid counsel Kshs. 100,000/= and would incur more fees. The Court found no evidence of payment, noted costs would be determined at taxation, and that the Respondents were themselves aggrieved and appealing the same judgment, so they could not claim prejudice.

p. 4
03

Arguability of intended appeal

Holding

The intended appeal was arguable, notably on whether the award of Kshs. 200,000/= for loss of land and breach of trust was merited when not sought

Reasoning

The Court examined the impugned judgment and pleadings and identified an arguable issue: an award made without a corresponding prayer. It held applicants need only demonstrate arguability, not high prospects of success.

p. 4
04

Distinguishing Martin Wanjala Wafula v Margaret Wairimu Mbirua

Holding

That authority, cited by the Respondents, was distinguishable because it involved about a year's unexplained delay

Reasoning

In Wafula the application came nearly a year after judgment, which was found inordinate and unexplained; here the delay was about one month and was explained, so the authority did not aid the Respondents.

p. 3

Legal principles established

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  • Whether to grant extension of time is a judicial discretion exercised on a case-by-case basis requiring a plausible explanation for the delay
  • A party should not be punished for the mistake of their legal adviser
  • An applicant for extension need only show arguability, not high chances of success

Court orders

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  1. 1.The application dated 25th November 2019 is allowed
  2. 2.The appeal be filed within 7 days of this ruling
  3. 3.The Respondents are awarded throw away costs assessed at Kshs. 10,000/= payable by Applicants' counsel
On appeal from
Chief Magistrate's Court, Bungoma
BUNGOMA CMCC NO 272 OF 2011
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 79G of the Civil Procedure Act and Orders 50 Rule 6 and 51 Rule 1 of the Civil Procedure 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, "Moses Lumbasi Simiyu & another v John Kaptoo Ngeywo & another [2020] KEELC 3073 (KLR)", Case Analysis (2020). Bungoma Civil Appeal (extension of time application) — Notice of Motion dated 25th November 2019, arising from BUNGOMA CMCC NO 272 OF 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3073/eng@2020-03-12

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