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ELCAllowedMISC. APPLICATION (Notice of Motion dated 21st June, 2021) arising from MIGORI CMCELC NO. 91 OF 2019· [2022] KEELC 1639 (KLR)

David Akongo Obilo v Dipen Hasmukhlal Faldu [2022] KEELC 1639 (KLR)

High Court of Kenya
8 February 2022
MKMOHAMMED N. KULLOW
2,804 words in judgment
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The bottom line

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Kenya's High Court gave a litigant extra time to appeal and paused the land case, showing courts will excuse a explained three-month delay.

What this practically means

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Executive summary

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The Applicant sought leave to file an appeal out of time against a ruling of Hon. Munguti, Senior Principal Magistrate, delivered on 24th February 2021 in MIGORI CMCELC NO. 91 OF 2019, dismissing his application for stay of those proceedings pending MIGORI ELC CASE NO. 2 OF 2017, in which the same parcel, L.R. NO. SUNA EAST/WASWETA I/2119, is in dispute. He also sought a stay of the magistrates' court proceedings pending the intended appeal. He attributed the delay in lodging the appeal to the trial court's failure to issue notice of the ruling date, which he learned of only at a mention on 14th April 2021, and to his illness during the Covid-19 pandemic. The Respondent opposed, contending the application was misconceived, an abuse of process and an afterthought. The court identified two issues: whether leave to appeal out of time could be granted, and whether a stay of proceedings could issue. Applying the principles in Leo Sila Mutiso, First American Bank, Andrew Kiplagat Chemaringo and the Supreme Court's Salat decision, the court found the delay of about three months and twenty-one days not inordinate and adequately explained, corroborating the applicant's account by perusing the lower court file. Applying the Re Global Tours and Travels principles, it found the draft appeal arguable and triable and no prejudice to the Respondent beyond costs. The court allowed the application, ordered the appeal filed within fifteen days, stayed the proceedings in MIGORI CMC ELC No. 91 of 2019 pending the intended appeal, required a record of appeal within forty-five days, and awarded the Respondent the costs of the application.

Key legal issues

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01

Whether leave to appeal out of time should be granted

Holding

Leave granted; the 3-month delay was not inordinate and was explained by non-issue of notice of the ruling date and the applicant's illness.

Reasoning

The court applied the Leo Sila Mutiso and Salat principles. The delay of about 3 months and 21 days was not inordinate; the trial court's failure to issue notice of the ruling date was verified by the judge's perusal of the lower court file; and no prejudice to the respondent could not be compensated by costs.

p. 3
02

Whether stay of proceedings in MIGORI CMCELC NO. 91 OF 2019 should issue

Holding

Stay granted pending the hearing and determination of the intended appeal.

Reasoning

Applying the Re Global Tours and Travels principles, the draft appeal was held arguable and triable, the explanation for the delay satisfactory, and staying the lower court proceedings served the interests of justice and optimum utilization of scarce judicial time.

p. 4

Legal principles established

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  • The factors for extension of time are the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
  • Anyone seeking extension of time must satisfactorily explain the cause of the delay.
  • Stay of proceedings pending appeal is a matter of judicial discretion exercised in the interests of justice.
  • An arguable appeal is one which raises contestable and triable issues, not one with overwhelming chances of success.

Court orders

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  1. 1.The appeal be filed within (15) fifteen days from the date of the ruling.
  2. 2.There be an Interim Stay of Proceedings in MIGORI CMC ELC No. 91 of 2019 pending the hearing and determination of the intended Appeal.
  3. 3.The Applicant to file and serve a Record of Appeal within 45 days from the date of the Ruling.
  4. 4.The applicant to meet the respondent's costs of the application.

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95

Cases cited (5)

  • Leo Sila Mutiso vs Rose Hellen Wangeri Mwangi
    Civil Appeal 255/1997
  • First American Bank of Kenya Ltd -vs- Gulab P. Shah & Others
    HCC 2255/2000 [2002] IEA 65
  • ANDREW KIPLAGAT CHEMARINGO V PAUL KIPKORIR KIBET
    [2018] eKLR
  • Nicholas Kiptoo Korir Arap Salat vs. IEBC & 7 Others
    [2014] eKLR
  • In Re Global Tours and Travels Ltd: Winding Up Cause No.43 of 2000
On appeal from
Senior Principal Magistrate's Court, Migori
MIGORI CMCELC NO. 91 OF 2019
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act (appeal from subordinate court; enlargement of time)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Akongo Obilo v Dipen Hasmukhlal Faldu [2022] KEELC 1639 (KLR)", Case Analysis (2022). MISC. APPLICATION (Notice of Motion dated 21st June, 2021) arising from MIGORI CMCELC NO. 91 OF 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1639/eng@2022-02-08

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