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ELCPartially AllowedNotice of Motion dated 25th June 2020 (High Court Civil Appeal jurisdiction, Kisii)· [2021] KEELC 4349 (KLR)

Hebron Orucho Gisebe & 2 others v Joseph Ombuna Gisebe & another [2021] KEELC 4349 (KLR)

High Court of Kenya at Kisii
10 February 2021
JOJ. M. ONYANGO
2,317 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 Kisii allowed late appeals caused by COVID-19 court closures, but only if the appeal is filed within 14 days of the ruling.

What this practically means

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Executive summary

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The Applicants filed a Notice of Motion dated 25th June 2020 seeking leave to appeal out of time against the whole Judgment of the Senior Resident Magistrate's Court at Kisii delivered on 28th February 2020, plus an order deeming the annexed Memorandum of Appeal as duly filed, and costs. The delay was attributed to lack of means and the disruption of court operations by the COVID-19 pandemic. The Respondent filed Grounds of Opposition and written submissions, arguing that the Applicants were present when judgment was delivered, requested certified proceedings on 2nd March 2020 but only paid the assessed deposit of Kshs. 1,075/- on 28th April 2020, had not sworn an affidavit of financial hardship, that the supporting affidavit was improperly sworn by their advocate, and that the delay of some four months was inordinate and unexplained. The court identified a single issue - whether to extend time for filing the appeal out of time - and applied the factors from Mwangi v Kenya Airways Ltd [2003] KLR and section 79G of the Civil Procedure Act. It found that the statutory period expired during the Judiciary's COVID-19 scale-down and that the application, filed on 25th June 2020 shortly after operations resumed, disclosed no inordinate delay. Although the Applicants had not filed a Memorandum of Appeal enabling assessment of arguability, the court saw no sufficient reason to refuse leave and found no prejudice to the Respondents. Leave was granted conditional on filing the Memorandum of Appeal within 14 days, with the Applicants bearing the costs of the Application.

Key legal issues

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Whether the Applicants established good and sufficient cause for filing the appeal out of time under section 79G of the Civil Procedure Act

Holding

Leave to appeal out of time was granted. The delay was not inordinate because the statutory period expired during the COVID-19 court scale-down and the application was filed on 25th June 2020, soon after operations scaled up on 15th June 2020. No prejudice was shown to the Respondents.

Reasoning

The court applied the Mwangi v Kenya Airways factors contemporaneously: period of delay, reason for delay, arguability, prejudice, importance of compliance with time limits and effect on administration of justice. It acknowledged the unprecedented disruption of COVID-19 on court operations and found the Applicants acted promptly on resumption. It noted the Applicants' failure to attach a Memorandum of Appeal analysis but nonetheless found sufficient reason to grant leave, directing prompt filing and conditioning leave on filing within 14 days.

p. 3

Legal principles established

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  • An applicant seeking extension of time under section 79G must show good cause, assessed against factors including the length of and reason for delay, arguability of the appeal, prejudice, and the public interest
  • The power to extend time is discretionary, not a right, and must be exercised judiciously on a case-by-case basis upon sufficient material
  • Statutory timelines, while important, do not override the pursuit of justice in extension-of-time applications

Court orders

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  1. 1.Applicants granted leave to appeal out of time against the Judgment of the Senior Resident Magistrate's Court at Kisii delivered on 28th February 2020, on condition that the Memorandum of Appeal is filed within 14 days after delivery of the Ruling
  2. 2.Applicants to bear the costs of the Application
  3. 3.Applicants directed to file all the requisite documents without any delay

Authorities

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Legislation

  • Civil Procedure Actsection 79G
  • Civil Procedure Actsection 75G (as cited by the Respondents)

Cases cited (5)

  • Karny Zahrya & another v Shalom Levi
    [2018] eKLR
  • Daphene Parry vs Murray Alexander Carson
    (1963) EA 546
  • Dilpack Kenya Limited v William Muthama Kitonyi
    [2018] eKLR
  • Hunker Trading Company Limited vs. Elf Oil Kenya Limited
    Civil Application No. Nai. 6 of 2010
  • Mwangi v Kenya Airways Ltd
    [2003] KLR
On appeal from
Senior Resident Magistrate's Court at Kisii
not stated
Jurisdiction invoked
Section 79G of the Civil Procedure Act (extension of time to file 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, "Hebron Orucho Gisebe & 2 others v Joseph Ombuna Gisebe & another [2021] KEELC 4349 (KLR)", Case Analysis (2021). Notice of Motion dated 25th June 2020 (High Court Civil Appeal jurisdiction, Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4349/eng@2021-02-10

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