Ojwang & another v Adero & 2 others (Miscellaneous Application E019 of 2024) [2025] KEELC 7437 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated good and sufficient cause under Section 79G of the Civil Procedure Act to warrant extension of time
Counsel's inadvertent failure to file the memorandum of appeal within 30 days, with prompt responsibility taken and no non-compensable prejudice to the respondent, constituted sufficient reason
The court accepted the criteria in Sala and First American Bank: length of and reasons for delay, arguability and prejudice. Counsel admitted he was instructed in good time but through inadvertence delayed three months. The court held the respondent's prejudice (costs and enjoyment of judgment) was adequately compensable by costs, and that a litigant should not be punished for counsel's mistake where a statutory window for extension exists.
Whether the intended appeal was arguable
The court declined to pronounce on merits but found the issues raised deserved to be canvassed on appeal
The court deliberately avoided any detailed merits assessment, holding only that the issues set out in the draft memorandum of appeal warranted full argument in the appeal itself, consistent with the arguability criterion without pre-judging the appeal.
Whether stay of execution should be granted pending appeal
Prayer treated as abandoned for want of submissions
The applicant sought stay of execution pending appeal but did not address the court on that relief; the court accordingly treated the prayer as abandoned and made no order on it.
Legal principles established
#- Extension of time is an equitable remedy, not a right, granted at the court's discretion to a deserving party
- Sufficient reason for delay is assessed on the circumstances of each case; a litigant should not be shut out of the right of appeal merely for the counsel's inadvertence where prejudice is compensable in costs
Court orders
#- 1.Leave to appeal out of time against the judgment of Hon. J.P. Nandi (SPM) delivered on 24th September 2024 in MCELC No E013 of 2023 granted
- 2.The Memorandum of Appeal annexed admitted as filed within the stipulated time
- 3.The appeal to be filed within 10 days of the date of the ruling
- 4.Costs of the application and proceedings granted to the 1st respondent
- 5.The file to be closed
- On appeal from
- Principal Magistrate's Court, Bondo
- MCELC No E013 of 2023
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (inherent discretion to admit appeals out of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ojwang & another v Adero & 2 others (Miscellaneous Application E019 of 2024) [2025] KEELC 7437 (KLR)", Case Analysis (2025). Application dated 18/12/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7437/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.