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ELCAllowedCivil Application dated 6th November 2023 (arising from Mombasa RMCC No. 1808)· [2024] KEELC 4639 (KLR)

Mwavula v Mohamed (Environment & Land Miscellaneous Case E059 of 2023) [2024] KEELC 4639 (KLR)

High Court of Kenya
13 June 2024
NMN.A. MATHEKA
1,278 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Mombasa gave a litigant more time to appeal, saying the short delay was understandable and the appeal had real merit.

What this practically means

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Executive summary

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This was a first-instance application by notice of motion dated 6th November 2023, brought under sections 79G and 95 of the Civil Procedure Act and Order 50 Rule 1 of the Civil Procedure Rules, seeking leave to file an appeal out of time against the whole judgment and decree of Hon. J. B Kalo, Chief Magistrate, delivered on 7th September 2023 in Mombasa RMCC No. 1808, Fatuma Mohamed vs Mnyasa Mwavula, together with an order deeming the annexed memorandum of appeal duly filed and served. The applicant explained that the judgment was emailed to his advocates on the delivery date and that by the time instructions to appeal were obtained, the thirty-day period under section 79G had lapsed; he argued the delay was slight and excusable and that the appeal was arguable. The respondent, in a replying affidavit, contended the application was brought with undue delay, that the applicant slept on his rights, and that no merit in the intended appeal was demonstrated. The court reviewed section 79G and the settled factors for extension of time drawn from Mugo vs Wanjiru, Edith Gichungu Koine vs Stephen Njagi Thoithi and Nicholas Kiptoo Arap Korir Salat vs IEBC: length of and reason for delay, prejudice, undue delay in the application, and arguability. The court noted the applicant's complaint that the trial judgment, even after amendment, referred to documents not produced in evidence, and found the draft memorandum raises an arguable appeal. Holding the delay not inordinate, the court granted the application as prayed, deemed the memorandum of appeal duly filed and served, and made no orders as to costs.

Key legal issues

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01

Whether the applicant demonstrated good and sufficient cause for extension of time under section 79G of the Civil Procedure Act

Holding

Yes. The delay arose while the applicant's advocates sought instructions after delivery of judgment, was not inordinate, and the applicant has an arguable appeal, so leave was granted.

Reasoning

The court applied section 79G and the factors in Mugo vs Wanjiru, Koine vs Thoithi and Salat vs IEBC: length of and reason for delay, prejudice to the respondent, undue delay and arguability of the appeal. It noted the amended judgment still contained erroneous references to documents not in evidence, found the draft memorandum of appeal raises the reliance on such facts, and concluded the appeal is arguable and the delay excusable.

p. 3

Legal principles established

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  • An intended appeal ought to have been filed before or together with an application seeking leave to extend time for filing the appeal.
  • Extension of time is an equitable remedy available to a deserving party at the discretion of the court, guided by the period of and reasons for delay, prejudice to the respondent, and undue delay in bringing the application.

Court orders

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  1. 1.Leave granted to the applicant to file appeal out of time against the whole judgment and decree of Hon. J. B Kalo Chief Magistrate given on 7th September 2023 in Mombasa RMCC No. 1808
  2. 2.The memorandum of appeal annexed deemed as duly filed and served
  3. 3.No orders as to costs
On appeal from
Chief Magistrate's Court, Mombasa
RMCC No. 1808
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act and Order 50 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, "Mwavula v Mohamed (Environment & Land Miscellaneous Case E059 of 2023) [2024] KEELC 4639 (KLR)", Case Analysis (2024). Civil Application dated 6th November 2023 (arising from Mombasa RMCC No. 1808). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4639/eng@2024-06-13

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