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ELCDismissedNot stated in judgment (application dated 11th May 2020; relates to Butere MCL & E Cause No. 48 of 2019)· [2021] KEELC 3930 (KLR)

Ezekiel Shikanda Saya v Alice Abuko Makale [2021] KEELC 3930 (KLR)

High Court of Kenya
23 March 2021
NMN.A. MATHEKA
774 words in judgment
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The bottom line

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The High Court in Kakamega refused to excuse a late appeal, ruling that Covid-19 financial hardship was not a sufficient reason for missing Kenya's 30-day appeal deadline.

What this practically means

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Executive summary

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The applicant moved the High Court at Kakamega by an application dated 11th May 2020 under Section 79G of the Civil Procedure Act seeking leave to lodge an appeal out of time against a ruling delivered on 6th April 2020 by the Butere magistrates' court, which struck out the applicant's entire suit (Butere MCL & E Cause No. 48 of 2019) seeking a permanent injunction over L.R. No. Kisa/Mundobelwa/817 on the ground that the subject-matter was the same as that pending in Kakamega High Court Succession Cause No. 415 of 2014. The applicant explained that he wished to appeal immediately but could not raise the requisite legal fees due to financial hardship caused by the Covid-19 pandemic, and that he had only now secured funds, the 30-day period having expired on 6th May 2020. The court set out the statutory test in Section 79G and applied the factors identified in Paul Musili Wambua v Attorney General & 2 others (2015) eKLR: length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent. The court held that the reason offered for the delay was unacceptable and that good and sufficient cause had not been demonstrated. The application was dismissed with costs. Judgment was delivered, dated and signed at Kakamega on 23rd March 2021 by N.A. Matheka, Judge.

Key legal issues

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01

Whether good and sufficient cause was shown for the delay in filing the appeal

Holding

The applicant's explanation of financial hardship due to the Covid-19 pandemic did not amount to good and sufficient cause

Reasoning

The ruling was delivered on 6th April 2020 and the 30-day period expired on 6th May 2020. The applicant attributed the delay to inability to raise legal fees owing to Covid-19 financial hardship. The court, applying the factors in Paul Musili Wambua, held the explanation unacceptable and declined to exercise its discretion in the applicant's favour.

p. 2

Legal principles established

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  • In deciding whether to extend time for filing an appeal, 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.Application dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Civil Procedure ActSection 79G

Cases cited (1)

  • Paul Musili Wambua v Attorney General & 2 others
    (2015) eKLR
On appeal from
Butere Magistrates' Court (MCL & E)
48 of 2019
Jurisdiction invoked
Section 79G of the Civil Procedure Act

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, "Ezekiel Shikanda Saya v Alice Abuko Makale [2021] KEELC 3930 (KLR)", Case Analysis (2021). Not stated in judgment (application dated 11th May 2020; relates to Butere MCL & E Cause No. 48 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3930/eng@2021-03-23

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