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ELRCDismissedNot stated (application dated 21st October, 2021 arising from SRM's Court ELRC Cause No. 9 of 2019)· [2022] KEELRC 567 (KLR)

Skylark Construction Limited v Pascal Obura Lago [2022] KEELRC 567 (KLR)

High Court of Kenya (ELRC at Kisumu)
10 March 2022
CBChristine N. Baari
1,341 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to extend time to appeal, ruling that a client's failure to instruct their lawyer is not a good enough reason for a late appeal.

What this practically means

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Executive summary

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The Applicant sought leave to file an appeal out of time against the judgment of the Senior Resident Magistrate's Court (ELRC Cause No. 9 of 2019) delivered on 19th August 2021. The application, dated 21st October 2021 and supported by an affidavit of her Counsel Geoffrey O. Yogo, explained the delay as the Applicant's failure to issue instructions to appeal in good time. The Respondent, Pascal Obura Lago, opposed, contending that no sufficient reason for the delay was shown, that the application was intended to frustrate recovery of the fruits of his judgment, and that an appeal is an equitable remedy available only to deserving parties. The Applicant argued the delay of about two months was not inordinate and offered security for costs; the Respondent relied on authority that failure to give instructions is not sufficient cause. The court identified one issue: whether the Applicant deserved the orders sought. Applying Section 79G of the Civil Procedure Act and the Salat principles (length of delay, reasons, arguability, prejudice), the court found the delay was about one month beyond the 19th September 2021 deadline and that failure to instruct Counsel was not good and sufficient cause, since litigants must monitor their cases and Counsel's mistake - not the client's inaction - is what courts commonly excuse. The impugned judgment was not exhibited, so arguability could not be assessed, and without it the court could not fix security for costs as the decretal sum was unknown. The application was dismissed with costs to the Respondent.

Key legal issues

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Whether the Applicant's delay of about one month, explained by failure to give instructions to her Advocates, constitutes good and sufficient cause for extension of time under Section 79G

Holding

It does not. Extension of time is equitable and discretionary; a litigant's failure to instruct Counsel is not a sufficient excuse, whereas mistake or oversight by Counsel is commonly excused

Reasoning

The court applied the settled principles: length of delay, reason for delay, arguability of the intended appeal, and prejudice to the Respondent. It distinguished between Counsel's mistake (excusable) and a client's failure to instruct (inexcusable), holding that the latter implies acceptance of the judgment. The delay, though modest, was unexplained by sufficient cause. The judgment was also not placed before the court, so chances of success and the decretal sum could not be assessed.

p. 2

Legal principles established

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  • Extension of time is an equitable remedy, not a right, and the applicant bears the burden of satisfying the court; failure by a litigant to issue instructions to appeal in good time does not constitute good and sufficient cause under Section 79G

Court orders

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  1. 1.The Applicant's application dated 21st October, 2021 is dismissed with costs to the Respondent
On appeal from
Senior Resident Magistrate's Court (ELRC Cause No. 9 of 2019)
ELRC Cause No. 9 of 2019
Jurisdiction invoked
Section 79G of the Civil Procedure Act (proviso permitting admission of appeal out of time upon good and sufficient cause)

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, "Skylark Construction Limited v Pascal Obura Lago [2022] KEELRC 567 (KLR)", Case Analysis (2022). Not stated (application dated 21st October, 2021 arising from SRM's Court ELRC Cause No. 9 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/567/eng@2022-03-10

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