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ELCDismissedMombasa CMCC No. 2529 of 2002 (application dated 18th July 2023)· [2024] KEELC 297 (KLR)

Awino v Nyakodhe (Environment and Land Miscellaneous Application E001 of 2023) [2024] KEELC 297 (KLR)

High Court of Kenya
31 January 2024
1,811 words in judgment
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The bottom line

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Kenya's High Court refused to extend time to appeal because a four-month, poorly explained delay and a weak draft appeal fell far short of what the law requires.

What this practically means

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Executive summary

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The applicant, Ally B. Omondi Nyakodhe, moved the High Court at Mombasa by an application dated 18th July 2023 seeking, in the first instance, a stay of execution of the judgment of Hon. J.B. Kalo (Chief Magistrate) delivered on 2nd March 2023 in Mombasa CMCC No. 2529 of 2002, in which the applicant's suit was dismissed and judgment entered on the respondent's undated counterclaim over House and Plot No. 20/1 File (H.D./CH 576). The applicant further sought enlargement of time and leave to file an appeal out of time, with the annexed memorandum of appeal deemed duly filed. The application was anchored on Articles 50 and 159 of the Constitution, sections 79G and 95 of the Civil Procedure Act, and Order 42 rule 6. The applicant attributed the delay to having travelled to Nairobi to pursue his pension with the Kenya Defence Forces, leaving his advocates unable to reach him in time. The court, applying section 79G and the principles in Mugo v Wanjiru, Edith Gichungu Koine and Nicholas Kiptoo Arap Korir Salat, held that the explanation was casual and unacceptable, that the applicant was guilty of inordinate delay, that the application was an afterthought, and that the intended appeal was not arguable. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether good and sufficient cause was shown for the delay in filing the appeal

Holding

The excuse that the applicant's advocates had difficulty reaching him after judgment was delivered was rejected as casual and unacceptable; the delay was inordinate and the application an afterthought

Reasoning

Judgment was delivered on 2nd March 2023 and the application dated 18th July 2023, a delay of over four months. The applicant attributed this to travel to Nairobi to pursue his pension with the Kenya Defence Forces and his advocates' difficulty in reaching him. The court found this explanation casual, held the appeal not arguable, and found the applicant guilty of inordinate delay.

p. 4
02

Whether the intended appeal was arguable

Holding

The court found the applicant did not have an arguable appeal, the draft memorandum merely alleging failure to take into account the plaintiff's evidence

Reasoning

Applying the factors in Salat and the extension-of-time jurisprudence, the court assessed the draft memorandum of appeal and found the ground that the trial magistrate erred in fact and law by failing to consider the plaintiff's evidence insufficient to render the intended appeal arguable. This independently justified refusal of leave and the stay sought.

p. 4
03

Whether the intended appeal ought to have been filed before or with the application for extension of time

Holding

The court noted the general rule that the notice and record of appeal should be regularised before or at the same time as the extension application, though such an application need not be refused on that ground alone

Reasoning

Relying on Mugo & others v Wanjiru, the court observed that the phrase 'an appeal may be admitted out of time' in section 79G means out-of-time admission is possible, but the intended appeal ought to have already been filed before or together with the extension application. This was noted as guidance on procedure but the application failed on the substantive grounds.

p. 3

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the court's discretion, and the applicant bears the burden of laying a basis for it
  • In an extension-of-time application the court considers the period of and reasons for delay, prejudice to the respondent, and whether the application was brought without undue delay
  • Under section 79G of the Civil Procedure Act an appeal may be admitted out of time where the appellant shows good and sufficient cause

Court orders

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  1. 1.The application dated 18th July 2023 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 50 & 159
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A, 63(e), 79G & 95
  • Civil Procedure RulesOrder 42 rule 6; Order 51 rule 1

Cases cited (3)

  • Mugo & others v Wanjiru & another
    [1970] EA 482
  • Edith Gichungu Koine v Stephen Njagi Thoithi
    [2014] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2013] eKLR
On appeal from
Chief Magistrate's Court, Mombasa
CMCC No. 2529 of 2002
Jurisdiction invoked
Articles 50 & 159 of the Constitution of Kenya, 2010; sections 1A, 1B, 3A, 63(e), 79G & 95 of the Civil Procedure Act (Cap 21); Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules

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, "Awino v Nyakodhe (Environment and Land Miscellaneous Application E001 of 2023) [2024] KEELC 297 (KLR)", Case Analysis (2024). Mombasa CMCC No. 2529 of 2002 (application dated 18th July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/297/eng@2024-01-31

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