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ELCDismissedNotice of motion dated 3/07/2024 (ruling arising from intended appeal against MCELC Case No. 28 of 2018)· [2025] KEELC 4787 (KLR)

Olwa v Osia & another (Miscellaneous Civil Application E010 of 2024) [2025] KEELC 4787 (KLR)

High Court of Kenya at Siaya
26 June 2025
1,938 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The High Court at Siaya refused to excuse a seven-month delay in filing an appeal because the applicant gave no evidence explaining the inaction.

What this practically means

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Executive summary

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This is a ruling of the High Court at Siaya (A.E. Dena, J) on a notice of motion dated 3 July 2024 seeking leave to file an appeal out of time against the judgment of the Principal Magistrates Court at Ukwala in MCELC Case No. 28 of 2018, delivered by Hon. Sarapai on 7 November 2023. The applicant, through supporting affidavit of counsel Dave Lung'aho Siganga, explained that neither he nor his advocates were notified of the delivery of the judgment and only became aware of it on 26 June 2024 when counsel perused the physical court file. The respondent opposed, citing inordinate unexplained delay, the applicant's failure to swear an affidavit, lack of interest in following up the case, and the further delay in prosecuting the application itself. The application was brought under sections 79G and 95 of the Civil Procedure Act and Order 43 Rule 2 of the Civil Procedure Rules. The court identified a single issue: whether the applicant met the threshold for extension of time. Applying the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat v IEBC, the court found the seven-month delay unexplained: no communication between counsel and the registry, no communication from the client, no affidavit from the applicant, and explanations advanced in submissions disregarded on the authority of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, submissions not being evidence. The court found indolence and dismissed the application, ordering each party to bear their own costs.

Key legal issues

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01

Whether the applicant established good and sufficient cause for not filing the appeal within the 30-day period under section 79G of the Civil Procedure Act

Holding

The applicant failed to demonstrate good and sufficient cause; the explanation of late discovery of the judgment was unsupported by evidence of any follow-up and submissions could not substitute evidence

Reasoning

The judgment was delivered on 7 November 2023 and the application filed on 4 July 2024, a delay of seven months. The applicant attributed the delay to counsel's late discovery of the judgment on 26 June 2024, but the applicant did not swear an affidavit, no communications with the registry were adduced, and the additional explanation advanced in submissions had no evidentiary footing. The court found indolence rather than sufficient cause.

p. 4
02

The principles governing the discretionary power to enlarge time

Holding

The discretion under section 79G must be exercised judiciously in line with the Salat principles, including explanation of the delay, prejudice to the respondent, and absence of undue delay

Reasoning

The court adopted the Supreme Court's principles in the Salat case as the governing framework, noting that extension of time is an equitable remedy for a deserving party who must lay a basis to the court's satisfaction, with the delay explained and any prejudice to the respondent considered on a case-by-case basis.

p. 3
03

Whether an indolent litigant is entitled to extension of time

Holding

An indolent party must reckon with the consequences of inaction; the applicant's failure to follow up his case through counsel weighed against extension

Reasoning

The court observed that no communication from the law firm or the client seeking progress of the case was adduced. Citing Muriti Kimonde v Kenya Commercial Bank and Rukenya Buuri v Marimi Minyora, it held that a litigant must diligently follow up the handling of his case by his advocate and bear the consequences of inaction.

p. 4

Legal principles established

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  • Extension of time is not a right but an equitable remedy available to a deserving party at the court's discretion, and the applicant bears the burden of explaining the delay to the satisfaction of the court
  • Submissions do not take the place of evidence
  • A litigant must be diligent in following up how his case is being handled by his advocate

Court orders

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  1. 1.The application dated 3/07/2024 for leave to extend time for filing an appeal is dismissed
  2. 2.Each party to bear their own costs
On appeal from
Principal Magistrates Court at Ukwala
MCELC Case No. 28 of 2018
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act; Order 43 Rule 2 of the Civil Procedure Rules, 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, "Olwa v Osia & another (Miscellaneous Civil Application E010 of 2024) [2025] KEELC 4787 (KLR)", Case Analysis (2025). Notice of motion dated 3/07/2024 (ruling arising from intended appeal against MCELC Case No. 28 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4787/eng@2025-06-26

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