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ELCDismissedNot stated in the judgment (appeal against Mombasa PMCC No. 24 of 2018)· [2024] KEELC 7141 (KLR)

Mwango & 2 others v Maonga & another (Environment and Land Appeal E011 of 2024) [2024] KEELC 7141 (KLR)

High Court of Kenya
30 October 2024
1,124 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 refused to extend time for a two-year-late appeal, warning that vague explanations of delay will not earn the court's discretion.

What this practically means

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Executive summary

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This was an application dated 22nd April 2024 brought under Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking a temporary stay of execution, stay of the judgment entered on 27th November 2023 in Mombasa PMCC No. 24 of 2018, and extension of time to file and serve a Memorandum of Appeal. The applicant, dissatisfied with the judgment of Hon F Kiamba in the Principal Magistrate's Court, filed the Memorandum of Appeal out of time, attributing the delay to unforeseen reasons. The respondent opposed, arguing the suit had been dismissed so there was nothing to stay, and that the conditions for stay and extension of time had not been met. The court identified Section 79G of the Civil Procedure Act as the operative provision, requiring an appeal from a subordinate court to be filed within thirty days, with admission out of time only upon good and sufficient cause. Applying the principles in Mugo & Others v Wanjiru, Edith Gichungu Koine v Stephen Njagi Thoithi, and Nicholas Kiptoo Arap Korir Salat v IEBC, the court held that the intended appeal ought to have been filed before or together with the extension application; that the explanation of unforeseen reasons was unsatisfactory; that the delay of almost two years was inordinate; and that the draft memorandum disclosed no arguable appeal. The application was dismissed with costs on 30th October 2024.

Key legal issues

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01

Whether the applicant gave a satisfactory explanation for the delay in filing the Memorandum of Appeal

Holding

The explanation of 'unforeseen reasons' was unsatisfactory and the delay of almost two years was inordinate; the application was an afterthought

Reasoning

The court applied Section 79G of the Civil Procedure Act requiring good and sufficient cause for admitting an appeal out of time. The applicant attributed the delay only to 'unforeseen reasons', which the court found unsubstantiated. The application was filed on 23rd April 2023 against a judgment of 9th July 2021, a delay of almost two years, which the court held to be inordinate and an afterthought disentitling the applicant to the discretionary relief.

p. 3
02

Whether the applicant demonstrated an arguable appeal

Holding

The court found the draft memorandum of appeal did not disclose an arguable appeal

Reasoning

In assessing the merits, the court examined the draft memorandum of appeal and found one of its grounds (that the trial magistrate made findings amounting to a total misdirection) did not demonstrate an arguable appeal. Since an applicant for extension of time must show the appeal is arguable, failure on this limb independently justified refusal of the extension and the associated stay of execution.

p. 3

Legal principles established

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  • Extension of time is not a right but an equitable remedy available at the court's discretion to a deserving party who lays a basis to the satisfaction of the court
  • An intended appeal ought to have been filed before or together with an application to extend time for filing the appeal

Court orders

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  1. 1.The application dated 22nd April 2024 is dismissed with costs
On appeal from
Principal Magistrate's Court, Mombasa
Mombasa PMCC No. 24 of 2018
Jurisdiction invoked
Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules; Section 3A and Section 79G of the Civil Procedure Act

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, "Mwango & 2 others v Maonga & another (Environment and Land Appeal E011 of 2024) [2024] KEELC 7141 (KLR)", Case Analysis (2024). Not stated in the judgment (appeal against Mombasa PMCC No. 24 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7141/eng@2024-10-30

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