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ELCPartially AllowedNotice of Motion dated 28th January 2020 (arising from Mavoko CMC ELC 33 of 2019)· [2022] KEELC 185 (KLR)

Cosmas Wambua Mututu & another v Henrietta Mukii Mwilu & another [2022] KEELC 185 (KLR)

High Court of Kenya
27 April 2022
ANA. Nyukuri
1,289 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a Notice of Motion dated 28th January 2020 in which the applicants sought leave to file an appeal out of time against the judgment delivered on 20th November 2019 in Mavoko CMC ELC 33 of 2019, and an order that their Memorandum of Appeal be deemed properly filed. The application was supported by the affidavit of the second applicant, who attributed the delay to the illness of the applicants' counsel, and was opposed by the first respondent through a replying affidavit describing it as frivolous, an afterthought and a delaying tactic aimed at denying the respondents the fruits of successful litigation. Written submissions were filed by both sides; the applicants relied on Section 79G of the Civil Procedure Act and Dilpack Kenya Limited v William Muthama Kitonyi, while the respondents invoked Section 79G, Order 42 Rule 1 of the Civil Procedure Rules and Article 159 of the Constitution to argue that breach of timelines is not an excusable technicality. The court framed a single issue: whether the orders sought should be granted. Applying the Salat principles on extension of time and authorities affirming the constitutional right to be heard, the court found that, after deducting the recess period under Order 50 Rule 4, the delay was only sixteen days, and that counsel's medical examination report dated 17th December 2019 satisfactorily explained it. The application was allowed: the applicants were granted fourteen days to file and serve their appeal, with each party bearing their own costs.

Key legal issues

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01

Whether the applicants showed good and sufficient cause for the delay in filing the appeal

Holding

The delay of sixteen days was satisfactorily explained by counsel's illness, evidenced by a medical report dated 17th December 2019, and was not inordinate.

Reasoning

The court computed the limitation period: the 30-day period under Section 79G expired on 20th December 2019, but time did not run between 21st December 2019 and 13th January 2020 by virtue of Order 50 Rule 4 of the Civil Procedure Rules. The application filed on 29th January 2020 was therefore only sixteen days late. Counsel's illness was corroborated by a medical examination report, satisfying the court that the delay was explained and not inordinate.

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02

The applicable principles for extension of time

Holding

The court adopted the Salat factors: extension of time is an equitable discretionary remedy requiring a basis, explanation of delay, absence of prejudice, and application without undue delay.

Reasoning

The court relied on the Supreme Court's decision in Nicholas Kiptoo Arap Korir Salat v IEBC setting out seven factors governing extension of time, and on Mbaki v Macharia and Richard Nchapi Leiyagu v IEBC for the principle that the right to be heard is constitutionally anchored and should not be fettered without justification, before applying those principles to the facts.

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Legal principles established

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  • Under Section 79G of the Civil Procedure Act, where there is good and sufficient cause, the court has discretion to grant leave to file an appeal out of time.
  • The right of appeal is a constitutionally protected right which should not be fettered without proper justification.

Court orders

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  1. 1.The Applicants are granted leave of 14 days to file and serve their appeal.
  2. 2.Each party shall bear their own costs.

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 Rule 1
  • Civil Procedure RulesOrder 50 Rule 4
  • Constitution of KenyaArticle 159

Cases cited (4)

  • Dilpack Kenya Limited v William Muthama Kitonyi
    [2018] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
  • Mbaki & Others v Macharia & Another
    [2005] 2 EA 206
  • Richard Nchapi Leiyagu v IEBC & 2 Others
    [2013] eKLR
On appeal from
Mavoko Chief Magistrate's Court (Environment and Land)
CMC ELC 33 of 2019
Jurisdiction invoked
Section 79G of the Civil Procedure Act (inherent discretion to admit appeal out of time upon good and sufficient cause)

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, "Cosmas Wambua Mututu & another v Henrietta Mukii Mwilu & another [2022] KEELC 185 (KLR)", Case Analysis (2022). Notice of Motion dated 28th January 2020 (arising from Mavoko CMC ELC 33 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/185/eng@2022-04-27

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