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ELCAllowedMiscellaneous Application 12 of 2022· [2022] KEELC 15523 (KLR)

Gomba v Owuor

Environment and Land Court
19 December 2022
GOG M A Ongondo
1,132 words in judgment
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The bottom line

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A Kenyan court allowed a landowner to appeal 90 days late because his lawyer never told him the judgment had been delivered.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Homa Bay (G M A Ongondo, J) determined a notice of motion dated October 13, 2022 by Richard Ong'ou Gomba seeking extension of time to appeal and admission of an appeal out of time against the judgment of the Oyugis Senior Principal Magistrate's Court in Environment and Land Case Number 102 of 2018 delivered on July 13, 2022. The motion was brought under sections 1A, 1B, 3, 3A and 79G of the Civil Procedure Act and Order 50 rules 6 and 8 of the Civil Procedure Rules, 2010. The applicant blamed his former counsel's failure to notify him of the judgment for the 90-day delay and asserted the intended appeal had overwhelming chances of success. The respondent opposed, contending the application was frivolous, that the applicant had been informed of the judgment through the area chief, and that the applicant was using his former counsel as a scapegoat for his own indolence, and warned of irreparable damage and imminent execution. Deciding the application on written submissions, the court held that extension of time is an equitable discretionary remedy rather than a right, depending on undue delay and its explanation. Applying Salat v IEBC and Shabir Din v Ram Parkash Anand, it found counsel's mistake should not be visited on the client and accepted the applicant's explanation as plausible and good and sufficient cause under the proviso to section 79G. Reinforced by Articles 48, 50(1) and 25(c) of the Constitution and Butt v Rent Restriction Tribunal, the court allowed the application, admitted the appeal out of time, and directed the applicant to file and serve the appeal within seven days. No express costs order was made.

Key legal issues

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01

Whether the applicant gave a satisfactory explanation for the 90-day delay in seeking extension of time

Holding

The delay was caused by counsel's failure to notify the applicant of the judgment, which is a plausible and sufficient explanation and constitutes good cause under the proviso to section 79G.

Reasoning

The court accepted the applicant's unchallenged deposition that his counsel failed to notify him of the judgment delivered on July 13, 2022. Relying on Shabir Din v Ram Parkash Anand, it held counsel's mistake should not be visited on the client, and on Andrew Kiplangat Chemaringo v Paul Kipkorir Kibet found the explanation plausible, satisfying the proviso to section 79G.

p. 2
02

Whether the constitutional guarantees of access to justice and fair hearing support extension of time

Holding

Articles 48, 50(1) and 25(c) anchor the applicant's right of access to justice and unlimited right to fair hearing, including pursuit of the intended appeal.

Reasoning

The court invoked the constitutional right of access to justice under Article 48 and the fair hearing guarantees of Articles 50(1) and 25(c) as reinforcing the applicant's entitlement to be admitted to appeal out of time, concluding the applicant has an unlimited right to file and pursue the prospective appeal.

p. 3

Legal principles established

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  • Extension of time is an equitable discretionary remedy, not a right, depending on factors including undue delay and its explanation.
  • The mistake of counsel should not be visited upon a client.

Court orders

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  1. 1.Application allowed in terms of extension of time to appeal and admission of the appeal out of time as sought in prayer (c)
  2. 2.Applicant to file and serve the prospective appeal within seven days from the date of the ruling, taking into account Order 50 rule 4 of the Civil Procedure Rules, 2010
  3. 3.It is so ordered

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A and 79G
  • Civil Procedure Rules, 2010Order 50 rules 4, 6, 7 and 8; Order 51 rule 16
  • Environment and Land Court Practice Directions, 2014Practice Direction Number 33
  • Constitution of Kenya, 2010Articles 25(c), 48, 50(1)

Cases cited (7)

  • Edith Guichugu Koine v Stephen Njagi Thitho
    (2014) eKLR
  • JMM v PM
    (2018) eKLR
  • Kwale International Sugar Company Ltd v Joshua Manthi Mani
    (2021) eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others
    (2014) eKLR

    Factors for extension of time including undue delay and explanation thereof

  • Shabir Din v Ram Parkash Anand
    (1955) EACA Volume 22 at page 48

    Mistake of counsel should not be visited upon a client

  • Andrew Kiplangat Chemaringo v Paul Kipkorir Kibet
    (2018) eKLR

    Plausible and satisfactory explanation for delay

  • Butt v Rent Restriction Tribunal
    (1979) eKLR

    The appellant has an undoubted right of appeal

On appeal from
Oyugis Senior Principal Magistrate's Court
Environment and Land Case Number 102 of 2018
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 79G of the Civil Procedure Act (Cap 21) and Order 50 rules 6 and 8 of the Civil Procedure Rules, 2010; Articles 48, 50(1) and 25(c) of the Constitution

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, "Gomba v Owuor", Case Analysis (2022). Miscellaneous Application 12 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15523/eng@2022-12-19

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