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ELCAllowedNotice of Motion dated 14th September 2020· [2021] KEELC 1654 (KLR)

Clemensia Nyanchoka Kinaro v Joyce Nyansiaboka Onchomba [2021] KEELC 1654 (KLR)

High Court of Kenya (sitting at Kisii)
7 October 2021
JOJ. M. Onyango
1,767 words in judgment
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The bottom line

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A Kisii High Court confirmed you can ask either the High Court or the Court of Appeal in Kenya to extend time for filing an appeal notice.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 14th September 2020 seeking extension of time to file a Notice of Appeal against a ruling delivered on 23rd April 2020. The Applicant explained that the ruling was delivered electronically via Zoom during the Covid-19 pandemic when her advocate's office was closed; counsel only learned of the ruling in June 2020 when reviewing emails, by which time the period for filing the Notice of Appeal had lapsed. The Respondent opposed the application, contending that the ruling was emailed to the advocates on the day of delivery, that the court had become functus officio, and that any extension should be sought from the Court of Appeal. The court framed two issues: whether it had jurisdiction to extend time for filing a Notice of Appeal, and whether the Applicant was entitled to leave to file out of time. Relying on Section 7 of the Appellate Jurisdiction Act and adopting the reasoning of Munyao J in Loise Chemutai Ngurule and Githinji JA in Kenya Airports Authority v Mutungi, the court held that jurisdiction to extend time for filing a Notice of Appeal vests concurrently in the High Court (and courts of equal status) and the Court of Appeal, distinguishing the contrary holding in Simon Towett Martim. Applying the Leo Sila Mutiso criteria, the court took judicial notice of the Covid-19 disruptions, found the delay adequately explained, balanced the Respondent's entitlement to the fruits of judgment against the Applicant's right of appeal, and granted the application. The Applicant was ordered to file her Notice of Appeal within 14 days, with the costs of the application borne by the Applicant. Judgment delivered at Kisii on 7th October 2021 by J. M. Onyango J.

Key legal issues

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01

Jurisdiction of the High Court to extend time for filing a Notice of Appeal

Holding

The High Court has jurisdiction under Section 7 of the Appellate Jurisdiction Act to extend time for filing a Notice of Appeal; jurisdiction is concurrent with the Court of Appeal and not exclusive to the latter.

Reasoning

Section 7 of the Appellate Jurisdiction Act expressly empowers the High Court to extend time for giving notice of intention to appeal. Adopting Munyao J's reasoning and Githinji JA's observation in Kenya Airports Authority v Mutungi, the court held that Rule 4 of the Court of Appeal Rules does not make the Court of Appeal's power exclusive; a party is free to approach either court.

p. 2
02

Whether leave to file the Notice of Appeal out of time should be granted

Holding

Leave was granted: the delay was occasioned by the Covid-19 pandemic scaling down of court operations, and the respondent was compensated by costs.

Reasoning

The court took judicial notice of Covid-19 pandemic disruptions, noting both the applicant and her advocate were absent at electronic delivery of the ruling and counsel saw the emailed ruling only in June 2020. Balancing the respondent's right to the fruits of judgment against the applicant's right of appeal, discretion was exercised in the applicant's favour with costs as compensation.

p. 3

Legal principles established

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  • The power to extend time for filing a Notice of Appeal under Section 7 of the Appellate Jurisdiction Act is vested in both the High Court (and courts of equal status) and the Court of Appeal; one may approach either court.
  • Extension of time is discretionary and the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding and the degree of prejudice to the respondent.

Court orders

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  1. 1.Leave granted to the Applicant to file her Notice of Appeal out of time, within 14 days from the date of the ruling
  2. 2.Costs of the application to be borne by the Applicant

Authorities

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Legislation

  • Appellate Jurisdiction Act (Cap 9)Section 7
  • Court of Appeal Rules (Cap 9 sub-leg)Rule 4
  • Court of Appeal RulesRule 41
  • Constitution of Kenya, 2010not specified

Cases cited (5)

  • Edward Njane Nganga & Another v Damaris Wanjiku Kamau & Another
    [2016] eKLR
  • Loise Chemutai Ngurule & Another v Winfred Leshwari Kimung'en & 2 Others
    [2015] eKLR
  • Simon Towett Martim v Jotham Muiruri Kibaru
    Nakuru High Court, Miscellaneous Civil Application No. 172 of 2004 (2004) eKLR
  • Kenya Airports Authority & Another v Timothy Nduvi Mutungi
    Court of Appeal, Civil Application No. NAI 165 of 2013 (UR 113/2013) (2014) eKLR
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    (Civil Application No Nai 255 of 1997) (unreported)
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act (Cap 9)

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, "Clemensia Nyanchoka Kinaro v Joyce Nyansiaboka Onchomba [2021] KEELC 1654 (KLR)", Case Analysis (2021). Notice of Motion dated 14th September 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1654/eng@2021-10-07

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