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ELCPartially AllowedMiscellaneous Civil Application (Notice of Motion dated 19th October 2020)· [2021] KEELC 2970 (KLR)

Swaleh Hassan & Ali Athman v Josephine Murungi [2021] KEELC 2970 (KLR)

High Court of Kenya
2 June 2021
CYC.K. Yano
1,671 words in judgment
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The bottom line

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The High Court in Mombasa gave litigants extra time to appeal because covid-19 court closures made their two-month delay excusable.

What this practically means

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Executive summary

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This ruling of the High Court at Mombasa (C.K. Yano, J) determined the applicants' Notice of Motion dated 19th October 2020 seeking enlargement of time to file an appeal out of time against the judgment of Honorable E. Makori delivered on 19th June 2020 in Mombasa CMCC Civil Suit No. 2090 of 2000, which had dismissed the suit for lack of jurisdiction. The application was supported by the affidavit of Swaleh Hassan, who explained that after judgment the court closed for 14 days due to covid-19 infections and the court file could not be traced until the handwritten judgment was supplied on 25th September 2020. The respondent filed a Notice of Preliminary Objection dated 18th November 2020, contending there is no legal provision for filing a miscellaneous civil application to enlarge time, and a replying affidavit by advocate Gikandi Ngibuini arguing the four-month delay was unexplained and that the memorandum of appeal had not been filed. The court framed a single issue: whether time should be enlarged. It held the two-month delay beyond the 30-day statutory period was not inordinate, excusing it in light of covid-19 disruption, court closures and reduced registry staffing, and noting the draft memorandum raised serious jurisdictional questions. The court also held that the failure to cite the Order under which the application was brought was a mishap that did not go to the root of the matter, guided by the overriding objective. The preliminary objection was overruled, leave to appeal out of time was granted, the memorandum was to be filed within seven days, and costs were ordered to be in the cause.

Key legal issues

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01

Whether the applicants' delay of two months in seeking extension of time was excusable

Holding

The delay was not inordinate and was excused given the covid-19 pandemic, closure of the court and difficulty tracing the file

Reasoning

The 30-day period under Section 79G expired on 19th July 2020; the application was filed in October 2020. The court took into account the closure of the court due to covid-19 infections, reduced registry staffing on resumption, and the delay in supplying the handwritten judgment until 25th September 2020. The draft memorandum raised a serious jurisdictional question warranting hearing.

p. 2
02

Whether the use of a miscellaneous civil application to seek enlargement of time was irregular

Holding

The preliminary objection was overruled; the procedural mishap did not go to the root of the matter and the overriding objective favoured a just determination

Reasoning

Although the applicants did not cite the Order under which the application was brought, the court held this mishap was not fatal. Sections 1A and 1B impose a duty to apply the Overriding Objective, and once time is enlarged under Section 95 the memorandum may be filed within the time stipulated by the court.

p. 2

Legal principles established

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  • Under Sections 79G and 95 of the Civil Procedure Act the court has discretion to enlarge time for filing an appeal where the intended appellant shows good and sufficient cause for the delay
  • A two-month delay in filing for extension of time, explained by covid-19 court closures and disruption, is not inordinate and may be excused

Court orders

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  1. 1.Leave is granted to the applicants to file an appeal against the Decree and Judgment of Honorable E. Makori at Chief Magistrate Court in Mombasa delivered on 19th June 2020 in CC No. 2090 of 2020
  2. 2.The Memorandum of Appeal shall be filed within seven (7) days from the date of this ruling
  3. 3.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 50 Rule 6

Cases cited (2)

  • Kenya Power & Lighting Company Ltd V Rose Anyango & Anor
    (2020) EKLR
  • Nicholas Kiptoo Arap Salat V IEBC and 6 others
    (2013) EKLR
On appeal from
Chief Magistrate's Court, Mombasa
CMCC Civil Suit No. 2090 of 2000
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 79G and 95 of the Civil Procedure Act and Order 50 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, "Swaleh Hassan & Ali Athman v Josephine Murungi [2021] KEELC 2970 (KLR)", Case Analysis (2021). Miscellaneous Civil Application (Notice of Motion dated 19th October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2970/eng@2021-06-02

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