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ELCDismissedNotice of Motion dated 6th August 2021 (arising from Bungoma Chief Magistrate's Land Case No. 56 of 2019)· [2021] KEELC 119 (KLR)

Richard Chesome v Mix Wafula Simiti & another [2021] KEELC 119 (KLR)

High Court of Kenya
16 December 2021
BOBOAZ N. OLAO
1,509 words in judgment
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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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Richard Chesome, the plaintiff in Bungoma Chief Magistrate's Land Case No. 56 of 2019, whose suit was dismissed by Hon. E. N. Mwenda, Principal Magistrate, on 24th June 2021, moved the High Court at Bungoma by Notice of Motion dated 6th August 2021 seeking leave to file a Notice of Appeal out of time and extension of time to appeal, citing Rule 4 of the Appellate Jurisdiction Act. He attributed the delay to problems with the E-filing system and the court's failure to assess fees. Ibrahim Wafula Barasa opposed, deponing that the Applicant's stay application had been dismissed, that no evidence of E-filing difficulties existed, and that the delay was inordinate. Justice Boaz N. Olao noted that the cited Court of Appeal rules were inapplicable but saved the application via Article 159(2)(d) of the Constitution and Order 51 Rule 10(2) of the Civil Procedure Rules. Applying Section 79G of the Civil Procedure Act and the principles in Nicholas Kiptoo arap Korir Salat v IEBC, the Court held that extension of time is an equitable remedy available only to a deserving party who explains the delay. The judgment had been delivered by e-mail to Counsel's addresses, which the Applicant did not dispute; the alleged letter of 12th November 2020 was never annexed; and no evidence supported the E-filing difficulties. The delay was unexplained and amounted to inaction and malafides. The application was dismissed with costs to the 2nd Respondent on 16th December 2021.

Key legal issues

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01

Whether the Applicant demonstrated good and sufficient cause for the delay in filing the Notice of Appeal

Holding

The Court found no good and sufficient cause; the Applicant's explanations regarding E-filing difficulties were unsupported by evidence

Reasoning

The judgment was delivered by electronic mail on 24th June 2021 to addresses provided by Counsel, which the Applicant did not dispute. The Applicant alleged a letter dated 12th November 2020 but never annexed it, and produced no evidence of calls or e-mails to the Court about E-filing problems. Nor did he say when he became aware of the judgment. The delay was therefore unexplained and the discretion to extend time could not be exercised in his favour.

p. 2
02

The principles governing extension of time applications

Holding

The Court applied the Salat principles: extension of time is an equitable discretionary remedy, not a right, granted on a case-by-case basis to a deserving party who explains the delay and shows absence of prejudice

Reasoning

Citing Nicholas Kiptoo arap Korir Salat v IEBC, the Court enumerated seven guiding principles, including the burden on the applicant to lay a basis for extension, the need to explain any delay to the Court's satisfaction, prejudice to the respondent, promptness of the application, and public interest in election petitions. The Applicant failed the burden of explanation, which was decisive.

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Legal principles established

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  • An appeal from a subordinate court must be filed within thirty days unless the appellant shows good and sufficient cause for extension of time
  • There is no difference between the words 'sufficient cause' and 'good cause'
  • A party with a judgment in its favour has a right to enjoy the benefits of that judgment, which can only be taken away for good and sufficient cause

Court orders

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  1. 1.The Notice of Motion dated 6th August 2021 is dismissed
  2. 2.Costs of the application are awarded to the 2nd Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159 2(d)
  • Court of Appeal RulesRules 4, 41, 42 and 43
  • Appellate Jurisdiction Act CAP 9Rule 4
  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 51 Rule 10(2)

Cases cited (2)

  • NICHOLAS KIPTOO arap KORIR SALAT .V. I.E.B.C & OTHERS
    2014 eKLR
  • QURESHI .V. PATEL
    1964 EALR 633
On appeal from
Chief Magistrate's Court, Bungoma
Land Case No. 56 of 2019
Jurisdiction invoked
Section 79G of the Civil Procedure Act, invoked with Article 159(2)(d) of the Constitution and Order 51 Rule 10(2) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Richard Chesome v Mix Wafula Simiti & another [2021] KEELC 119 (KLR)", Case Analysis (2021). Notice of Motion dated 6th August 2021 (arising from Bungoma Chief Magistrate's Land Case No. 56 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/119/eng@2021-12-16

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