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ELCDismissedMombasa High Court Civil Appeal (application dated 29th February 2024)· [2024] KEELC 6099 (KLR)

Onyango v Legal Representatives of the Estate of Mohamed Zakaria Sadik (Deceased) & another (Environment and Land Appeal E008 of 2024) [2024] KEELC 6099 (KLR)

High Court of Kenya
24 September 2024
NMN.A. Matheka
1,353 words in judgment
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The bottom line

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The Mombasa High Court refused to forgive a four-month delay in filing an appeal because the applicant offered no real explanation and no arguable case.

What this practically means

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Executive summary

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This was an application dated 29th February 2024 by Jared Omondi Onyango, brought under Order 50 Rule 6 and Order 42 Rule 1 of the Civil Procedure Rules and Sections 79G, 1A and 1B of the Civil Procedure Act, seeking extension of time to file an appeal out of time against the judgment of Hon M. Nabibya RM in Mombasa MCCC No. E412 of 2022 delivered on 27th November 2023, in which the court found the applicant had participated in a plan to swindle the respondent by selling him land he did not have. The applicant also sought admission of a memorandum of appeal already filed, alleging he had not been served with notice of the judgment date and only learned of it upon perusal of the court file. The respondents were served but did not attend or file a response. The court applied Section 79G and the principles in Salat, Koine and Mugo v Wanjiru on extension of time: the length of and reason for delay, prejudice, undue delay in bringing the application and arguability of the appeal. It found the explanation inadequate because the applicant did not state when he discovered the judgment, the application was filed over four months after the judgment, and the draft memorandum disclosed no arguable appeal. The court held the applicant guilty of inordinate delay, termed the application an afterthought, and dismissed it with no orders as to costs since it was undefended.

Key legal issues

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01

Whether good and sufficient cause was shown for the delay under Section 79G

Holding

The explanation was inadequate and unverified; the applicant was guilty of inordinate delay

Reasoning

The applicant claimed he only learned of the judgment upon perusal of the court file, but did not indicate when that discovery occurred, and the application was filed over four months after judgment. The court found the delay inordinate and the application an afterthought, and further found the draft memorandum disclosed no arguable appeal.

p. 3
02

Whether the intended appeal was arguable

Holding

The applicant does not have an arguable appeal

Reasoning

The only documents attached were a draft memorandum of appeal and a letter to court. The draft memorandum merely alleged that the trial magistrate erred in fact and law by failing to appreciate the effect of pleadings and evidence, which the court found insufficient to show an arguable appeal.

p. 3

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the discretion of the court
  • The intended appeal ought to have been filed before or together with an application for extension of time

Court orders

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  1. 1.The application dated 29th February 2024 seeking extension of time to appeal is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 42 Rule 1
  • Constitution of Kenya, 2010Articles 50, 25, 24

Cases cited (3)

  • Mugo & Others vs Wanjiru & Another
    (1970) EA 482
  • Edith Gichungu Koine vs Stephen Njagi Thoithi
    (2014) eKLR
  • Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others
    (2013) eKLR
On appeal from
Chief Magistrate's Court, Mombasa
Mombasa MCCC/E412/2022
Jurisdiction invoked
Sections 79G, 1A and 1B of the Civil Procedure Act and Order 50 Rule 6 and Order 42 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, "Onyango v Legal Representatives of the Estate of Mohamed Zakaria Sadik (Deceased) & another (Environment and Land Appeal E008 of 2024) [2024] KEELC 6099 (KLR)", Case Analysis (2024). Mombasa High Court Civil Appeal (application dated 29th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6099/eng@2024-09-24

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