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ELRCAllowedButali SRM CC NO. 104 OF 2016 (Application dated 26th October, 2021)· [2021] KEELRC 82 (KLR)

West Kenya Sugar Co Ltd v Jason Wafula Kalibo [2021] KEELRC 82 (KLR)

High Court of Kenya
20 December 2021
1,565 words in judgment
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The bottom line

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Kenya's High Court let West Kenya Sugar appeal late and stopped execution of the judgment, because the lawyer's error was not the client's fault and the money was already secured.

What this practically means

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Executive summary

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This ruling by J. W. Keli, Judge, decided a Notice of Motion dated 26th October 2021 by West Kenya Sugar Company Limited, the applicant, seeking leave to appeal out of time, stay of execution, and admission of the intended appeal against the judgment and decree in Butali SRM CC No. 104 of 2016, Jason Wafula Kalibo v West Kenya Sugar Company Limited. The applicant's earlier appeal to the Kakamega High Court had been struck out for want of jurisdiction following the respondent's application, and a transfer attempt failed. The respondent opposed, alleging inordinate delay of over three years, failure to show seriousness, and prejudice to a successful litigant who should enjoy the fruits of judgment. The court framed four issues, principally whether leave to appeal out of time should be granted and whether substantial loss would result absent a stay. Relying on Section 79G and Section 95 of the Civil Procedure Act, the court found the whole period of delay explained, the intended appeal arguable, and the advocate's mistake in filing in the wrong court not attributable to the client. Objections to counsel's affidavit were dismissed as technicalities under Article 159(2)(d). Applying Shell Ltd v Kibiru, the court accepted potential substantial loss given the decree holder's impecuniosity, noting the decretal amount was already deposited in a joint interest-earning account. The application was allowed in full: leave to appeal out of time was granted, stay of execution issued pending the appeal, the intended appeal admitted out of time, with costs in the cause.

Key legal issues

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01

Whether leave to file appeal out of time should be granted under Section 79G of the Civil Procedure Act

Holding

Leave granted; the delay was explained, the intended appeal raised arguable issues, and the decretal amount had been deposited in a joint interest-earning account as security

Reasoning

The court found the period between the lower court decision and the application was explained by the earlier appeal being struck out for want of jurisdiction and the failed transfer attempt. Citing George Kangethe Waruthiu v Estina Nyamweru, the whole period of delay must be explained. The intended memorandum of appeal raised arguable issues, including that the trial court ignored the defence and submissions on quantum, and the applicant had deposited the decretal amount in a joint account, satisfying the threshold under Section 79G.

p. 2
02

Whether the affidavit of the applicant's counsel should be admitted

Holding

The affidavit was admitted; objections to it were procedural technicalities contrary to Article 159(2)(d) of the Constitution

Reasoning

The affidavit of counsel explained matters an advocate is competent to address and annexed court rulings and pleadings. The court held that rejecting it on procedural grounds would be an undue technicality, since Article 159(2)(d) of the Constitution requires that justice be administered without undue regard to procedural technicalities.

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03

Whether substantial loss would result if stay of execution were not granted

Holding

Stay granted; the applicant demonstrated potential loss since the decree holder, said to be a man of straw, could not repay the decretal sum if the appeal succeeded

Reasoning

Applying Shell Ltd v Kibiru & Another, the court accepted that substantial loss includes loss of money already paid where the respondent would be unable to repay. The applicant had shown the decree holder was a person of straw and had already deposited the decretal amount in a joint interest-earning account held by the advocates, which the respondent did not rebut in response or submissions.

p. 2

Legal principles established

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  • The whole period of delay in filing an appeal must be explained for the court to exercise its discretion under Section 79G of the Civil Procedure Act
  • The mistakes of an advocate in filing an appeal in the wrong court cannot be visited on the client
  • An affidavit sworn by counsel explaining matters within an advocate's competence, with annexed rulings and pleadings, cannot be rejected on grounds of procedure
  • Substantial loss for stay pending appeal may be shown where the decree holder would be unable to repay the decretal sum if paid

Court orders

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  1. 1.Leave is granted to the Applicant to file appeal out of time from the judgment and decree in Butali SRM CC NO. 104 of 2016 Jason Wafula Kalibo -Vs West Kenya Sugar Company Ltd
  2. 2.Order of stay of execution of decree in Butali SRM CC NO. 104 of 2016 Jason Wafula Kalibo -vs - West Kenya Sugar Company Ltd is granted pending the lodging, hearing and determination of the appeal to be filed in this court
  3. 3.The intended appeal be admitted out of time
  4. 4.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 95
  • Civil Procedure ActSection 79G
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (3)

  • George Kangethe Waruthiu -vs Estina Nyamweru & another
    (2021) eKLR
  • First American Bank of Kenya -vs- Gulab P Shah 2 others
    Nairobi HCC NO. 2255 of 2000 (2002)/EA 65
  • Shell Ltd -vs- Kibiru & Another
    Civil Appeal No. 97 of 1996
On appeal from
Butali Senior Resident Magistrate's Court
CC NO. 104 OF 2016
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act and Order 42 Rule 6(2) 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, "West Kenya Sugar Co Ltd v Jason Wafula Kalibo [2021] KEELRC 82 (KLR)", Case Analysis (2021). Butali SRM CC NO. 104 OF 2016 (Application dated 26th October, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/82/eng@2021-12-20

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