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ELCDismissedWinam P.M. C.E No. 75 of 2018 (appeal therefrom); Notice of Motion dated 30/10/2020· [2021] KEELC 3465 (KLR)

George Oraro & another v Juma Oyiende Jabel [2021] KEELC 3465 (KLR)

High Court of Kenya
5 May 2021
AOANTONY OMBWAYO
1,604 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 in Kisumu refused to excuse a five-month delay in filing an appeal, ruling that filing before getting permission was an illegality it could not fix.

What this practically means

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Executive summary

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George Oraro and Christine Oraro appealed against the ruling of Hon. H. M. Nyaberi, Senior Principal Magistrate, delivered on 24th April 2020 in Winam P.M. C.E No. 75 of 2018, and brought a notice of motion dated 30th October 2020 seeking leave to appeal out of time and that their memorandum of appeal dated 13th July 2020 (filed 27th October 2020) be deemed filed. They attributed the delay to the scale-down of court operations during the COVID-19 pandemic. The respondent opposed, pointing out that court registries remained open for urgent filings, operations fully resumed on 15th June 2020, and the appeal was filed some five months later without explanation; the appellants also never applied for typed proceedings. Antony Ombwayo J found that the ruling was delivered in the presence of counsel, that the appellants had filed their memorandum of appeal out of time before obtaining leave - which, following County Executive of Kisumu v County Government of Kisumu and the Nicholas Salat decisions, rendered the memorandum a nullity and was highly irregular - and that although the pandemic explained the delay up to 15th June 2020, the appellants gave no satisfactory explanation for the delay thereafter despite electronic filing and virtual hearings being available. Applying the extension-of-time principles set out by the Supreme Court in the Nick Salat case, the court held that no special circumstances existed to justify the extension. The application was dismissed with costs on 5th May 2021, the ruling being delivered by electronic mail due to COVID-19 restrictions.

Key legal issues

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01

Irregularity of filing an appeal out of time before leave is granted

Holding

Filing an appeal out of time before seeking extension of time is irregular; the memorandum of appeal so filed is a nullity and the court cannot remedy that illegality by deeming it filed

Reasoning

The court adopted the Court of Appeal's decision in County Executive of Kisumu v County Government of Kisumu, which relied on the Nicholas Salat case. The memorandum of appeal was dated 13th July 2020 and filed on 27th October 2020 without any prior leave, so the court could not deem it properly filed even if extension were granted.

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02

Whether the COVID-19 scale-down justified the entire period of delay

Holding

The COVID-19 explanation covered only the period up to 15th June 2020 when court operations resumed; the delay from that date to November 2020 was unexplained and inordinate

Reasoning

Applying the principles in the Nick Salat case, the applicant bears the burden of explaining the delay to the court's satisfaction. The appellants did not apply for proceedings in the lower court and offered no explanation for the five months after full resumption of court operations, during which electronic filing, virtual hearings and mobile communication were available.

p. 2

Legal principles established

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  • Where the law prescribes a time for doing an act, a party must first obtain an extension of time before doing that act; a document filed out of time without leave is a nullity
  • Extension of time is an equitable, discretionary remedy requiring the applicant to satisfactorily explain the delay

Court orders

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  1. 1.The application for leave to appeal out of time is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 79G

Cases cited (3)

  • County Executive of Kisumu v County Government of Kisumu & 8 others
    [2017] eKLR
  • Nicholas Salat
  • Nick Salat Case (Supreme Court)
On appeal from
Principal Magistrates Court, Winam
Winam P.M. C.E & L.C. No. 75 of 2018
Jurisdiction invoked
Section 79G of the Civil Procedure Act, Chapter 21 Laws of Kenya (leave to appeal out of time)

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, "George Oraro & another v Juma Oyiende Jabel [2021] KEELC 3465 (KLR)", Case Analysis (2021). Winam P.M. C.E No. 75 of 2018 (appeal therefrom); Notice of Motion dated 30/10/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3465/eng@2021-05-05

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