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ELCAllowedNyahururu CM ELC No. 141 of 2018 (appeal thereto — Notice of Motion dated 4th June 2020)· [2021] KEELC 4709 (KLR)
Samson Lopagave Longu v Eunice R.W. Gitahi [2021] KEELC 4709 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#A Kenyan court allowed an appeal filed late because the delay was caused by the court itself, not the litigant.
What this practically means
#Executive summary
#This was a Notice of Motion dated 4 June 2020 by the Applicant seeking extension of time to file a Memorandum of Appeal out of time against the judgment of Hon J Wanjala CM delivered on 29 January 2020 in Nyahururu CM ELC No. 141 of 2018, in which an eviction order had been issued against the Applicant and his extended family. The application was brought under Sections 1A, 1B, 3A and 79G of the Civil Procedure Act and Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules. It was supported by the affidavit of the Applicant's Counsel, Eunice Wamucii Ndegwa. The Respondent was served but filed no response; the matter proceeded by written submissions. The Applicant relied on Thuita Mwangi vs Kenya Airways Ltd [2003] eKLR on the principles for extension of time, and explained the delay by the disappearance of the court file from the registry shortly after judgment, defects and missing pages in the supplied judgment, and court closures occasioned by the Covid-19 pandemic; the file was accessed only on 27 May 2020 and the application was lodged within a week. Oundo J framed two issues: the nature of the delay and the reasons for it. The court held that the delay was satisfactorily explained, was in fact caused by the court itself, and that no substantial prejudice would befall the Respondent, who had filed no response. The court found merit in the application, allowed the appeal to be filed out of time within 15 days, and ordered costs in the cause.
Key legal issues
#01
Whether the Applicant showed good and sufficient cause under Section 79G for the delay in filing the appeal
Holding
Yes; the delay was explained and was caused by the unavailability of the court file, for which the Applicant could not bear responsibility
Reasoning
The judgment was delivered on 29 January 2020 and the file went missing from the registry immediately thereafter, compounded by court closures due to Covid-19. Counsel accessed the file only on 27 May 2020 and filed the application within a week. Delay caused by the court cannot be laid on the litigant, and no prejudice to the Respondent was demonstrated.
p. 2
Legal principles established
#- An application to file an appeal out of time can be allowed so long as the applicant demonstrates good and sufficient cause; the merits of the appeal are not a consideration.
Court orders
#- 1.Leave granted to file the Memorandum of Appeal out of time
- 2.The Appeal be filed within 15 days of delivery of the ruling
- 3.Costs in the cause
- On appeal from
- Nyahururu Chief Magistrate's Court (ELC)
- CM ELC No. 141 of 2018
- Jurisdiction invoked
- Section 79G as read with Section 95 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samson Lopagave Longu v Eunice R.W. Gitahi [2021] KEELC 4709 (KLR)", Case Analysis (2021). Nyahururu CM ELC No. 141 of 2018 (appeal thereto — Notice of Motion dated 4th June 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4709/eng@2021-01-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.