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ELRCDismissedMisc Application No 11 of 2020· [2021] KEELRC 2140 (KLR)

Blue Cat Port Services Ltd v George Oteko Orimbo & 2 others [2021] KEELRC 2140 (KLR)

High Court of Kenya
18 February 2021
LNLinnet Ndolo
1,574 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The High Court in Mombasa refused a company extra time to appeal, ruling COVID-19 does not excuse sitting on your rights while online courts stayed open.

What this practically means

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Executive summary

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The Applicant sought leave under Sections 79G and 95 of the Civil Procedure Act to file an appeal out of time against the judgment of Hon G. Kiage, SRM delivered on 28th May 2020 in Mombasa SRMCC No 649 of 2012 (George Oteko Orimbo v K.K Security Group of Companies Limited & others), a work-injury claim in which the Applicant had been joined by a Third Party Notice seeking indemnity or contribution. The Applicant attributed the delay to COVID-19 disruptions affecting its operations and instructions, and argued the delay was slight and excusable, that the intended appeal raised triable issues on apportionment of liability and jurisdiction under the Work Injury Benefits Act, and that no prejudice would ensue. The 1st Respondent countered that judgment was delivered in the presence of the Applicant's representatives, that a judgment notice was served on 4th June 2020 and re-served on 10th June 2020, that all other judgment debtors settled their portions of the decretal sum, and that execution had commenced against the Applicant, which was indolent. Applying the settled criteria in Leo Sila Mutiso v Rose Hellen Wangari Mwangi and Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet, the court held that the Applicant's Advocates knew of the judgment as early as 28th May 2020 but took no action until execution on 27th August 2020; online platforms rolled out by the Judiciary meant COVID-19 could not excuse apathy. The prejudice to the 1st Respondent, who had reaped the fruits of judgment, was decisive. Leave to appeal out of time was declined with costs to the 1st Respondent, and the court did not consider the merits of the intended appeal.

Key legal issues

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01

Whether the Applicant demonstrated good and sufficient cause under Section 79G of the Civil Procedure Act to warrant leave to appeal out of time

Holding

No; the Applicant's Advocates knew of the judgment from 28th May 2020 but took no action until execution on 27th August 2020, and the COVID-19 excuse failed because online platforms were available

Reasoning

The court applied the settled Leo Sila Mutiso factors. The judgment notice was served on 4th June 2020, so the Applicant was aware of the judgment well within the appeal period. The affidavit supporting the application attributed the delay to COVID-19 disruptions preventing instructions, but the court noted the Judiciary had rolled out online platforms, which the Applicant chose not to utilise. The delay was therefore unexplained and attributable to the Applicant's own irresponsibility.

p. 3
02

Whether the 1st Respondent would suffer prejudice if extension of time were granted

Holding

Yes; the 1st Respondent had already reaped the fruits of judgment against the 2nd and 3rd Respondents, and re-opening would be greatly prejudicial

Reasoning

The court found that all judgment debtors except the Applicant had settled their portions of the decretal sum, and execution had commenced against the Applicant. Granting leave would drag the 1st Respondent back to litigation after enjoying the fruits of his judgment. This prejudice, coupled with the unexplained delay, defeated the application, and the court found it unnecessary to consider the merits of the intended appeal.

p. 3

Legal principles established

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  • The COVID-19 Pandemic cannot be used as a general excuse for apathy or indolence of litigants, given that the Judiciary rolled out online platforms early in the Pandemic
  • Extension of time is discretionary and turns on the length of and reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent

Court orders

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  1. 1.The Applicant's application for leave to file an appeal out of time is declined
  2. 2.Costs of the application to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Work Injury Benefits Act2007

Cases cited (2)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR
On appeal from
Chief Magistrate's Court, Mombasa
Mombasa SRMCC No 649 of 2012
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, "Blue Cat Port Services Ltd v George Oteko Orimbo & 2 others [2021] KEELRC 2140 (KLR)", Case Analysis (2021). Misc Application No 11 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2140/eng@2021-02-18

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