Mohamed Amin Kakao & another v Nyakigo Odero [2021] KEELC 722 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Length of and reasons for delay
The delay of about one month was not inordinate since the applicant had requested certified proceedings and judgment shortly after the judgment.
The court found the applicant wrote to the Deputy Registrar on 20th December 2019, 40 days after the 4th December 2019 judgment, requesting certified copies of proceedings and judgment, which were availed on 14th January 2020. The delay was thus attributable to obtaining the court record, not the applicant's inaction, and was not inordinate.
Chances of the appeal succeeding
An arguable appeal need not succeed; it suffices that it is not frivolous. The memorandum of appeal raised triable issues.
The court noted it could not ascertain at that stage whether the appeal was arguable, but the draft memorandum of appeal was not frivolous on its face and raised triable issues requiring determination. The applicant would have an opportunity to argue the merits and the respondent to respond once the appeal was filed.
Prejudice to the respondent
The respondent would suffer no prejudice if leave were granted; the court balanced the injustice of denial against prejudice of granting.
The court held it proper to balance competing interests: the injustice to the applicant if extension were denied against any prejudice to the respondent if granted. Since the applicant was aggrieved and desirous of appealing, and the appeal would test the merits, no prejudice flowed from allowing the extension.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary, considering the length of and reason for the delay, chances of the appeal succeeding, and prejudice to the respondent.
- Extension of time is an equitable remedy available to a deserving party at the discretion of the court, and the applicant bears the burden of laying a basis for it.
Court orders
#- 1.Leave granted to the applicant to file and serve a record of appeal out of time against the judgment and decree of Hon. W.K. Onkunya, Senior Resident Magistrate, delivered on 4th December 2019 in Kisumu ELC No. 338 of 2018
- 2.The record of appeal to be filed and served within fourteen (14) days from the date of the ruling
- 3.Costs of the application to abide by the outcome of the intended appeal
- On appeal from
- Chief Magistrate's Court, Kisumu
- Kisumu ELC No. 338 of 2018
- Jurisdiction invoked
- Sections 79G, 95 and 75(1) of the Civil Procedure Act, Cap 21; Order 43 Rule 1(2) and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Amin Kakao & another v Nyakigo Odero [2021] KEELC 722 (KLR)", Case Analysis (2021). Kisumu ELC No. 338 of 2018 (Application dated 12th February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/722/eng@2021-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.