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ELCDismissedKisumu High Court Civil Suit (application arising from Kisumu Chief Magistrate's Court Civil Suit No. 437 of 2018)· [2022] KEELC 3563 (KLR)

Land Settelement Fund Board of Trustees & another v Ondeng & 2 others (Miscellaneous Civil Application E035 of 2021) [2022] KEELC 3563 (KLR)

High Court of Kenya
13 May 2022
2,500 words in judgment
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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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The Applicants moved the High Court at Kisumu by notice of motion under Order 50 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, 2010, sections 1A, 1B, 3, 3A and 75 of the Civil Procedure Act and Article 159 of the Constitution, seeking leave to appeal out of time against the judgment in Kisumu Chief Magistrate's Court Civil Suit No. 437 of 2018 delivered on 16th December 2019, and a stay of execution pending the intended appeal. They complained of double compensation awarded to the 1st Respondent (market value of Kshs. 8,200,000/= plus purchase price of Kshs. 1,200,000/=), unproven valuation fees, awards of rent, costs payable to Josana Academy, advocate's fees, travelling and subsistence expenses, and expenses for work done on the suit property, and attributed the delay in appealing to late instructions received by the 2nd Applicant. The 1st Respondent opposed, deposing that the Applicants were present at delivery of judgment, that the delay of 730 days was inordinate and unexplained, and that the application was a delaying tactic to deny him the fruits of his judgment. He relied on authorities requiring good and sufficient cause under section 79G of the Civil Procedure Act. The Applicants failed to file submissions as ordered; the 2nd and 3rd Respondents did not respond. Applying the principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court found the 730-day delay inordinate and unexplained, the intended memorandum of appeal lacking triable issues and the application an afterthought brought in bad faith, and no demonstrated prejudice. The application was dismissed with costs.

Key legal issues

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01

Length of and reasons for the delay

Holding

The 730-day delay was inordinate and unexplained; the Supporting Affidavit merely reproduced the grounds of appeal.

Reasoning

Judgment was delivered on 16th December 2019 in the presence of both parties. The Supporting Affidavit failed to clearly explain the reasons for the delay of 730 days, which is far beyond the statutory 30-day period. The court found the reasons were not explained to its satisfaction, which is fatal to an extension application under section 79G.

p. 5
02

Chances of the appeal succeeding

Holding

The intended memorandum of appeal did not raise triable issues; the appeal was an afterthought and a delay tactic.

Reasoning

While the court cannot determine the merits of the intended appeal at this stage, it examined the draft memorandum and found it did not raise triable issues. The court also held the application was not brought in good faith, characterising the intended appeal as an afterthought intended to deny the 1st Respondent the fruits of his judgment.

p. 5
03

Prejudice to the Applicants

Holding

The Applicants failed to demonstrate any prejudice they would suffer if the orders were not granted.

Reasoning

The court found that although the Applicants were aggrieved by the lower court's judgment and wished to appeal out of time, they did not demonstrate any prejudice they would suffer if the extension and stay were refused. Absent demonstrated prejudice, the application could not stand.

p. 6

Legal principles established

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  • An appeal from a subordinate court to the High Court must be filed within thirty days, but may be admitted out of time if the appellant shows good and sufficient cause.
  • In considering extension of time, 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.
  • Extension of time is an equitable remedy available only to the vigilant and not to the indolent.

Court orders

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  1. 1.The application is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 75, 79G, 95
  • Civil Procedure Rules, 2010Order 50 rule 6; Order 51 rule 1
  • Constitution of Kenya, 2010Article 159

Cases cited (8)

  • Union Insurance Company Ltd v Ramzan Abdul Dhanji
    Nai. C.A. Applic. No. 238 of 2000
  • Julius Muthoka Ndolo v Danson Mutuku Muema
  • Stecol Corporation Ltd v Susan Awuor Mudembi
    (2021) eKLR
  • MFI Document Solutions Ltd v Paretto Printing Works Limited
    (2021) eKLR
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Gerald Kithu Muchanje v Catherine Muthoni Ngare & another
    [2020] eKLR
  • Kenya Power & Lighting Company Ltd v Rose Anyango & another
  • Divya J. Patel v Guardian Bank Limited
    [2020] eKLR
On appeal from
Kisumu Chief Magistrate's Court
Civil Suit No. 437 of 2018
Jurisdiction invoked
Sections 79G, 95 and 75 of the Civil Procedure Act; Order 50 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, 2010; Article 159 of the Constitution of Kenya, 2010

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, "Land Settelement Fund Board of Trustees & another v Ondeng & 2 others (Miscellaneous Civil Application E035 of 2021) [2022] KEELC 3563 (KLR)", Case Analysis (2022). Kisumu High Court Civil Suit (application arising from Kisumu Chief Magistrate's Court Civil Suit No. 437 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3563/eng@2022-05-13

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