Ahmed Chege Gikera v John Maina Mburu & 2 others [2021] KEELC 584 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established good and sufficient cause under section 79G of the Civil Procedure Act for filing the appeal out of time
The Court found no good and sufficient cause; the Applicant's advocate had notice of the ruling date and the alleged inability to log online and the alleged missing file were unsubstantiated
The ruling was delivered on 10/6/2021, so the appeal was due by 10/7/2021, yet no memorandum of appeal had been filed by 13/8/2021 when the application was lodged. The explanation that counsel could not log into the online system was unexplained in substance, and notice of the ruling date meant nothing barred counsel from perusing the file or accessing the ruling. The claim that the file went missing was unsupported by any correspondence from the Applicant or the Registry. Accordingly, the delay was not explained and the discretion was not unlocked.
Whether the delay was inordinate
Yes, a delay of two months without any memorandum of appeal was inordinate
Section 79G requires appeals from subordinate courts to the High Court to be filed within thirty days of the decree or order appealed from, subject to exclusion of time certified for preparing a copy. The Applicant filed the application two months after the ruling without having filed any memorandum of appeal, only a draft annexed to the application. The Court, citing case law, held that inordinate delay is measured by the reasonableness of the delay, the conduct of the party and the prejudice to the respondent in the overall circumstances of the case.
Legal principles established
#- Extension of time is not a right of a party; it is an equitable remedy available to a deserving party at the discretion of the Court, and the applicant bears the burden of explaining the delay to the satisfaction of the Court
- There is no fixed rule for what constitutes inordinate delay; it depends on the circumstances of each case, including the reasonableness of the delay, the conduct of the party and the prejudice to the respondent
- The sufficiency of the explanation for the delay unlocks the Court's discretion in favour of an applicant
Court orders
#- 1.The application dated 13/8/2021 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Sections 79G, 95, 1A, 1B, 3A and 63 of the Civil Procedure Act; Order 42 rule 1 and Order 50 rule 5 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ahmed Chege Gikera v John Maina Mburu & 2 others [2021] KEELC 584 (KLR)", Case Analysis (2021). Not stated in judgment (arising from MCL & E No. 40 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/584/eng@2021-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.