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ELCAllowedNot stated in the judgment· [2025] KEELC 5309 (KLR)

Ogisiri v Mwita (Miscellaneous Civil Application E003 of 2023) [2025] KEELC 5309 (KLR)

High Court of Kenya
30 June 2025
MKMohamed N. Kullow
995 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 of Kenya allowed a late land appeal, confirming that explaining the delay clearly can win you more time to file.

What this practically means

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Executive summary

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The applicant moved the court by Notice of Motion dated 9th October 2023 seeking leave to file an appeal out of time against the judgment and decree of Hon. John Munguti delivered on 10th May 2023 in Migori Chief Magistrate's Court, ELC No. 24 of 2020. The applicant explained that he had paid for certified copies of the judgment and proceedings and instructed the firm of E. Kisia & Associates, whose advocates inadvertently failed to file the memorandum of appeal in time; he argued the appeal had high chances of success and that an advocate's mistake should not be visited on the client. The respondent opposed, contending there was no good or sufficient reason for the delay and that the application was an afterthought and an abuse of process intended to delay execution of his decree. The court framed a sole issue: whether leave could be granted to file an appeal out of time. Relying on sections 79G and 95 of the Civil Procedure Act and the principles in Leo Sila Mutiso and First American Bank of Kenya Ltd v Gulab P. Shah, the court considered the length of and reason for the delay, the arguability of the appeal and prejudice to the respondent. Noting the draft Memorandum of Appeal challenged the validity of the title to L.R No. Bukira/Bwisaboka 5586 and that the respondent would suffer no prejudice, the court allowed the application, directing the applicant to file the Memorandum of Appeal within 15 days and the Record of Appeal within 30 days of filing the memorandum.

Key legal issues

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01

Whether leave can be granted to file an appeal out of time against a subordinate court judgment

Holding

Leave was granted; the applicant's explanation (advocate's failure to file) and the lack of prejudice to the respondent justified extension of time.

Reasoning

The court invoked sections 79G and 95 of the Civil Procedure Act, which permit admission of an appeal out of time on good and sufficient cause and enlargement of time in the court's discretion. Applying the Leo Sila Mutiso principles (length of and reason for delay, arguability, prejudice), the court found the advocate's inaction explained the delay and, from the draft Memorandum of Appeal challenging the validity of the title to L.R No. Bukira/Bwisaboka 5586, that the appeal was arguable and the respondent would suffer no prejudice.

p. 3

Legal principles established

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  • The decision to extend time for appealing is discretionary, and the court considers the length of and reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent.
  • There is no maximum or minimum period of delay set by law, but an applicant must satisfactorily explain the cause of the delay.

Court orders

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  1. 1.The Applicant do file his Memorandum of Appeal within 15 days of the Ruling.
  2. 2.The Applicant do file his Record of Appeal within 30 days of filing the Memorandum of Appeal.

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95

Cases cited (3)

  • Leo Sila Mutiso vs Rose Hellen Wangeri Mwangi
    Civil Appeal 255/1997
  • First American Bank of Kenya Ltd -vs- Gulab P. Shah & Others
    HCC 2255/2000 [2002] IEA 65
  • Andrew Kiplagat Chemaringo V Paul Kipkorir Kibet
    [2018] eKLR
On appeal from
Migori Chief Magistrate's Court, ELC
ELC No. 24 of 2020
Jurisdiction invoked
Sections 79G and 95 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, "Ogisiri v Mwita (Miscellaneous Civil Application E003 of 2023) [2025] KEELC 5309 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5309/eng@2025-06-30

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