Ezekiel Aduga Vitolo v Mwamba Valuers Limited [2021] KEELC 2708 (KLR)
The bottom line
#The High Court at Bungoma refused a late appeal because the man waited eight months without a good excuse and had already settled the case by consent.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant showed good and sufficient cause to warrant extension of time under Section 79G
The Court found the delay of eight months unreasonable and the explanation lacking candour, particularly as the former advocates on record were not called to corroborate the claim of non-service
The Applicant learned of the judgment on 16th December 2019 but only filed the application on 21st August 2020, some eight months later. His claim that hearing notice was never served on his then advocates was unsupported, since J. Simasi & Company never confirmed this. The delay was therefore unexplained and unreasonable, failing the Section 79G threshold of good and sufficient cause.
Whether the Applicant demonstrated substantial loss for purposes of stay under Order 42 Rule 6
The Applicant merely asserted loss and prejudice without demonstrating what substantial loss he would suffer
Applying the Salat principles and Kenya Shell, the Court held that an applicant for stay must demonstrate substantial loss. Paragraph 21 of the supporting affidavit merely averred loss and prejudice without particulars. Additionally, the decree had been fully executed: the Applicant had paid costs of Kshs 120,500 and been released from civil jail pursuant to a consent, so no substantial loss could arise.
Effect of the consent recorded on 9th October 2020
The consent, unrebutted and not impugned for fraud, error or misrepresentation, marked the matter as settled and barred any appeal under Section 67(2) of the Civil Procedure Act
The consent recorded by both Counsel released the Applicant from civil jail upon payment of costs and marked the matter settled. The Applicant did not rebut it and gave no grounds of fraud, error or misrepresentation to set it aside. Section 67(2) bars appeals from consent decrees, rendering the Application futile.
Legal principles established
#- Extension of time is not a right but an equitable remedy available to a deserving party at the discretion of the Court
- Substantial loss is the cornerstone for the grant of an order of stay of execution pending appeal
- No appeal lies from a decree passed by consent of the parties
Court orders
#- 1.The Notice of Motion dated 10th August 2020 is dismissed with costs
- On appeal from
- Webuye Senior Principal Magistrate's Court
- 218 of 2017
- Jurisdiction invoked
- Sections 3, 3A and 79G of the Civil Procedure Act; Order 42 Rule 6 and Order 36 Rule 10 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ezekiel Aduga Vitolo v Mwamba Valuers Limited [2021] KEELC 2708 (KLR)", Case Analysis (2021). Notice of Motion dated 10th August 2020 (arising from Webuye Senior Principal Magistrate Case No. 218 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2708/eng@2021-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.