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ELCDismissedNot stated in the judgment (application by Notice of Motion dated 15th March 2023)· [2024] KEELC 334 (KLR)

Owino (Suing as the Administrator of the Estate of Anditi Nyaongo- Deceased) v Oluoch (Sued as the Administrator of the Estate of Domtila Atieno Okech- Deceased) (Miscellaneous Application 1 of 2023) [2024] KEELC 334 (KLR)

High Court of Kenya
1 February 2024
GOG.M.A Ongondo
1,659 words in judgment
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The bottom line

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The High Court in Homa Bay refused a woman permission to appeal late because she could not explain why she waited seven months.

What this practically means

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Executive summary

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This ruling by the High Court at Homa Bay (G.M.A Ongondo, J) determined a Notice of Motion dated 15th March 2023 by Hellen Atieno Owino seeking leave to appeal out of time against a judgment delivered on 27th July 2022 by Hon. Tom Mark Olando (Principal Magistrate) in Homa Bay CMCC No. E016 of 2021, together with a stay of execution pending the intended appeal. The application was brought under Sections 1A and 3A of the Civil Procedure Act, Order 42 Rule 6(2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010, and Article 159 of the Constitution. The applicant claimed she became aware of the judgment after the appeal period lapsed, that her intended appeal was arguable, and that execution would render the appeal nugatory. The respondent, through Nyakwamba and Company Advocates, opposed, asserting the applicant had legal representation at trial, was aware of the judgment, and that a certificate of costs had issued on 2nd December 2022, and that the application was brought after inordinate delay without demonstration of substantial loss. In written submissions the applicant relied on, inter alia, Mombasa County Government v Kenya Ferry Services and Butt v Rent Restriction Tribunal; the respondent filed none. Applying the Supreme Court's criteria in Nicholas Kiptoo Arap Korir Salat v IEBC and the excusable-delay test in Njoroge v Kimani (as informed by National Union of Mineworkers v Council for Mineral Technology), the court found no reasonable and acceptable explanation for the approximately seven-month delay, holding the application an afterthought and the delay inexcusable. Consequently, no stay could issue. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the delay of about seven months in seeking leave to appeal out of time was excusable

Holding

The delay was inexcusable; no reasonable and acceptable explanation was advanced, and the application failed to meet the test for the court's discretionary extension of time.

Reasoning

Judgment was delivered on 27th July 2022, the decree extracted on 7th October 2022, and a certificate of costs issued on 2nd December 2022. The applicant had counsel on record throughout the trial, contradicting her claim of ignorance of the judgment. Applying the Salat criteria and the Njoroge v Kimani test, the delay was foreseeable and within the party's control, and the explanation was unacceptable. The application was therefore an afterthought and the discretion could not be exercised in her favour.

p. 4
02

Whether stay of execution of the trial court's judgment should issue pending the intended appeal

Holding

No stay could issue because the application for extension of time had failed.

Reasoning

Stay of execution under Order 42 Rule 6 was contingent on the intended appeal proceeding, which in turn depended on leave to appeal out of time. Having found the delay inexcusable and the application an afterthought, the court declined stay as sought in prayer 4, since the foundation for the intended appeal had collapsed.

p. 4

Legal principles established

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  • An application for extension of time must show good and substantial reasons for the delay and prima facie good cause why the intended appeal should be heard
  • Excusable delays are unforeseeable and beyond the control of the party; without a reasonable and acceptable explanation for the delay, prospects of success are immaterial

Court orders

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  1. 1.The Notice of Motion dated 15th March 2023 was dismissed with costs to the respondent
On appeal from
Chief Magistrates' Court, Homa Bay
Homa Bay CMCC No. E016 of 2021
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya as read with Order 42 Rule 6(2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and 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, "Owino (Suing as the Administrator of the Estate of Anditi Nyaongo- Deceased) v Oluoch (Sued as the Administrator of the Estate of Domtila Atieno Okech- Deceased) (Miscellaneous Application 1 of 2023) [2024] KEELC 334 (KLR)", Case Analysis (2024). Not stated in the judgment (application by Notice of Motion dated 15th March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/334/eng@2024-02-01

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