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ELCAllowedNot stated in the judgment· [2021] KEELC 2281 (KLR)

Stephen Wakhu, John Muyobi Ondwasi & Abraham Ondwasi v George Alfred Chituyi [2021] KEELC 2281 (KLR)

High Court of Kenya at Busia
29 July 2021
AOA. Omollo
1,360 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed it can extend time to appeal against its own rulings, and granted an elderly applicant with dementia leave to appeal nearly two years late.

What this practically means

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Executive summary

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This is a ruling of the High Court at Busia (A. Omollo, J) delivered on 29th July 2021 on a notice of motion by the Respondent/Applicant under Order 42 Rule 6 of the Civil Procedure Rules and sections 3 and 3A of the Civil Procedure Act. The Applicant sought leave to appeal out of time against a ruling delivered by A.K. Kaniaru on 25th July 2019, a stay of execution of that ruling pending the intended appeal, leave for new advocates to come on record, and deeming of the annexed Memorandum and Notice of Appeal as duly filed. The Appellants/Respondents opposed, contending the court lacked jurisdiction to extend time and that no account had been given for every period of inaction. The court directed submissions on jurisdiction. It began from the locus classicus that a court without jurisdiction must down its tools, but, on reconsidering section 7 of the Appellate Jurisdiction Act and the decision of Githinji JA in Michael Joseph, overcame its initial doubt and held that the High Court has jurisdiction to extend time for filing a Notice of Appeal against its own judgment. It further held that the power is discretionary and, noting the Applicant's absence abroad, his failure to get updates from his former advocate, and his diagnosis of dementia, found the explanation for delay reasonable. The application was allowed: leave to appeal out of time within seven days, maintenance of the status quo pending appeal, deeming of the Memorandum and Notice of Appeal as filed upon payment of fees, and costs of the application to the Respondent.

Key legal issues

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01

Jurisdiction of the High Court to extend time for appeal from its own judgment

Holding

The High Court has jurisdiction under section 7 of the Appellate Jurisdiction Act to extend time for filing a Notice of Appeal against its own judgment.

Reasoning

The court initially held it lacked power but, revisiting section 7 of CAP 9 in light of Githinji JA's decision in Michael Joseph, concluded the section plainly confers power on the High Court to extend time for notice of appeal or application for leave to appeal from a High Court judgment, and adopted that position.

p. 2
02

Reasonableness of the delay and exercise of discretion

Holding

The delay was reasonably explained by the Applicant's dementia and late awareness of the judgment, warranting extension of time.

Reasoning

The Applicant was abroad until October 2019, could not get updates from his advocate, was diagnosed with dementia per a medical letter annexed as 'GAC 2', and only learnt of the ruling on 5th December 2020 after recuperating. The court found these reasons reasonable and exercised its discretion in his favour.

p. 2

Legal principles established

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  • The High Court has jurisdiction under section 7 of the Appellate Jurisdiction Act to extend time for giving notice of intention to appeal from a judgment of the High Court, even where the time has expired.
  • Jurisdiction is the foundation of a court's authority; where a court lacks jurisdiction it must stop and take no further step.
  • The power to extend time to file an appeal out of time is discretionary and depends on the reasonableness of the explanation for the delay.

Court orders

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  1. 1.Leave granted to the Applicant to appeal out of time against the ruling delivered on 25th July 2019 within a period of Seven (7) days
  2. 2.Order for maintenance of the status quo existing when the impugned ruling was delivered on 25th July 2019 pending the hearing and determination of the intended appeal
  3. 3.The Memorandum of Appeal and Notice of Appeal annexed deemed as duly filed upon payment of the requisite court fees
  4. 4.Costs of and incidental to the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Appellate Jurisdiction Act CAP 9Section 7

Cases cited (4)

  • Edward Njane Nganga & another v Damaris Wanjiku Kamau & another
    (2016) eKLR
  • Michael Joseph & another v Kenya Aviation Workers Union
    (2019) eKLR
  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Loise Chemutai Ngurule & another v Winfred Leshwari Kimung’en & 2 others
    (2015) eKLR
On appeal from
High Court
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act (CAP 9), with sections 3 and 3A of the Civil Procedure Act and Order 42 Rule 6 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, "Stephen Wakhu, John Muyobi Ondwasi & Abraham Ondwasi v George Alfred Chituyi [2021] KEELC 2281 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2281/eng@2021-07-29

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