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ELRCAllowedNotice of Motion dated 2nd November, 2021 (arising from CMCC No. 7762 of 2013)· [2022] KEELRC 930 (KLR)

Twiga Construction Company Limited v Lawrence Pwora [2022] KEELRC 930 (KLR)

High Court of Kenya
31 January 2022
SRStella Rutto
1,324 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 allowed an appeal filed one month late because the court file went missing, showing short, well-explained delays can be forgiven.

What this practically means

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Executive summary

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The Applicant, by Notice of Motion dated 2nd November 2021, sought leave to appeal out of time against a Ruling of Hon. M. Kagoni, Principal Magistrate, in CMCC No. 7762 of 2013 delivered on 8th September 2021, in which the court dismissed a preliminary objection challenging the lower court's jurisdiction over a work injury claim. The application, grounded on Order 42 Rule 6, Order 50 Rule 6 and Sections 1A, 1B, 3A, 63(e), 70G and 95 of the Civil Procedure Act, was supported by the affidavit of Zehrabanu Janmohamed, advocate on record. She explained that the Memorandum of Appeal was due by 8th October 2021, but delays arose because the physical court file went missing and registry staff could not locate it, so a certified typed copy of the Ruling was only obtained when it was uploaded to the e-filing portal on 9th October 2021. The application was served but unopposed: the Respondent appeared at no hearing and filed no response, and the court was eventually satisfied with the affidavit of service of Florence Atieno Obonyo. The court identified the sole issue as whether the application was merited, applied Sections 79G and 95 of the Civil Procedure Act, and held that the delay was not inordinate or inexcusable and that the reasons advanced were plausible and uncontroverted. The application was allowed, with the Applicant granted 14 days to file and serve the Memorandum of Appeal, and costs in the cause. Stella Rutto J delivered the ruling at Nairobi on 31st January 2022, noting COVID-19 delivery directions.

Key legal issues

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01

Whether the Applicant made out a case for extension of time to file an appeal under Sections 79G and 95 of the Civil Procedure Act

Holding

The delay of about one month was not inordinate or inexcusable, and the explanation - difficulty in obtaining a typed certified copy of the Ruling because the physical file was missing - was plausible. Leave to appeal out of time was granted with 14 days to file and serve the Memorandum of Appeal.

Reasoning

The Ruling was delivered on 8th September 2021 and time expired on 8th October 2021; the Application was filed on 2nd November 2021, beyond the 30-day period. The Respondent did not file any response, so the explanation regarding the missing physical file and delay in obtaining a certified typed ruling was uncontroverted. The court found the delay neither inordinate nor inexcusable and exercised its discretion under Sections 79G and 95 to enlarge time.

p. 2

Legal principles established

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  • An appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time (Section 79G, Civil Procedure Act)

Court orders

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  1. 1.Leave granted to the Applicant to appeal out of time against the Ruling delivered on 8th September, 2021
  2. 2.Applicant granted 14 days from the date of the ruling to file and serve the Memorandum of Appeal upon the Respondent
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e), 70G, 79G, 95
  • Civil Procedure Rules, 2010Order 42 Rule 6, Order 50 Rule 6, Order 21 Rule 1
  • Constitution of KenyaArticles 48, 159(2)(d)
On appeal from
Chief Magistrate's Court (CMCC No. 7762 of 2013)
CMCC No. 7762 of 2013
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act; Order 42 Rule 6, Order 50 Rule 6, Sections 1A, 1B, 3A, 63(e), 70G and 95 of the Civil Procedure Rules, 2010

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, "Twiga Construction Company Limited v Lawrence Pwora [2022] KEELRC 930 (KLR)", Case Analysis (2022). Notice of Motion dated 2nd November, 2021 (arising from CMCC No. 7762 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/930/eng@2022-01-31

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