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ELCDismissedNotice of Motion dated 13th January, 2020 (Kangundo PMCC ELC No. 59 of 2019 related)· [2021] KEELC 2755 (KLR)

Voken Mutunga v Juvenalis Musyoki Kavita & another [2021] KEELC 2755 (KLR)

High Court of Kenya
25 June 2021
1,769 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a bid to appeal out of time, ruling that a Christmas office closure does not excuse missing Kenya's 30-day appeal deadline.

What this practically means

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Executive summary

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By a Notice of Motion dated 13th January 2020, the Plaintiff/Applicant sought a stay of proceedings before the trial Magistrate in Kangundo PMCC ELC No. 59 of 2019, an extension of time and leave to appeal out of time against a ruling of 20th November 2019 in which the trial Magistrate overruled an objection to the production of secondary documentary evidence and, suo motu, allowed the Respondents' application of 18th October 2019 to introduce fresh documentary evidence without hearing the Applicant. The Applicant relied on Mwangi vs. Kenya Airways Ltd, contending the delay was not inordinate because his advocate's office closed for the Christmas break. The Respondents opposed, describing the application as an afterthought marked by unexplained inordinate delay, and noting the documents had not yet been admitted as exhibits and could be objected to at trial. The court, Angote J, framed two issues: whether there was good and sufficient cause to extend time under Section 79G of the Civil Procedure Act, and whether the trial proceedings should be stayed. Reviewing the principles in Leo Sila Mutiso, Salat, Patrick Kiruja Kithinji, Daphne Parry and Parimal vs. Veena Bharti, the court found the memorandum of appeal was due by 19th December 2019 and no reason was given for the failure to file within that period; the Christmas vacation could not justify the delay. It further held the admissibility of the impugned documents could be canvassed at trial and on any subsequent appeal, so no irremediable prejudice would arise. The application was dismissed with costs on 25th June 2021.

Key legal issues

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01

Whether the delay in filing the intended appeal was explained

Holding

The delay was not sufficiently explained; closure of the advocate's office for Christmas holidays did not prevent filing before 19th December 2019

Reasoning

The ruling was delivered on 20th November 2019 and the memorandum of appeal was due by 19th December 2019. The advocate's stated Christmas break begins around 24th December, after the deadline. No reason was given for not filing within the 30-day window, so the delay was inordinate and unexplained.

p. 3
02

Whether the Applicant would suffer prejudice if stay and leave were refused

Holding

No irreparable prejudice; admissibility of the disputed documents can be tested at trial and on appeal after judgment

Reasoning

The court held that objections to the secondary documentary evidence could be raised during the hearing in the trial court, and the issue of admissibility would form part of any main appeal after judgment, so any grievance was capable of being remedied later.

p. 3
03

Whether the court has discretion to extend time under Section 79G

Holding

Yes, the discretion is discretionary and unfettered but must be exercised on established principles where sufficient cause is shown

Reasoning

The court reviewed Section 79G of the Civil Procedure Act and authorities including Leo Sila Mutiso, Salat and Patrick Kiruja Kithinji, noting the word 'may' connotes discretion, and an appeal filed out of time requires leave as it goes to jurisdiction.

p. 2

Legal principles established

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  • An appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time
  • In deciding whether to extend time, 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.The Application dated 13th January, 2020 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure Rules, 2010Order 50, Rule 6
  • Evidence Actnot specified
  • Constitution of KenyaArticle 159

Cases cited (8)

  • Mwangi vs. Kenya Airways Ltd
    [2003] KLR
  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    Civil Application NBI 251 of 1997
  • First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others
    Nairobi (Milimani) HCCC No. 2255 of 2000 [2002] 1 EA 65
  • Nicholas Kiptoo Arap Korir Salat vs. The Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
  • Patrick Kiruja Kithinji vs. Victor Mugira Marete
    [2015] eKLR
  • Daphne Parry vs. Murray Alexander Carson
    [1963] EA 546
  • Parimal vs. Veena Bharti
    Civil Appeal 1467 of 2011 (2011)
  • Fakir Mohammed vs. Joseph Mugambi & 2 Others
    [2005] eKLR
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Order 50 Rule 6 of the Civil Procedure Rules, 2010

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, "Voken Mutunga v Juvenalis Musyoki Kavita & another [2021] KEELC 2755 (KLR)", Case Analysis (2021). Notice of Motion dated 13th January, 2020 (Kangundo PMCC ELC No. 59 of 2019 related). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2755/eng@2021-06-25

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