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ELRCPartially AllowedNotice of Motion dated January 26, 2023· [2023] KEELRC 487 (KLR)

Paul v West Kenya Sugar Co. Limited (Miscellaneous Application E001 of 2023) [2023] KEELRC 487 (KLR)

High Court of Kenya
22 February 2023
JKJ. W. Keli
1,427 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court allowed a claimant to appeal late because losing his phone explained the delay, confirming courts need not assess an appeal's strength.

What this practically means

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Executive summary

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The applicant, whose claim in Kakamega Civil Suit No E42 of 2020 was dismissed with costs on October 13, 2022 by the magistrate's court, brought an unopposed notice of motion dated January 26, 2023 under section 79G of the Civil Procedure Act and Order 50 rule 6 (and Order 40 rule 1) of the Civil Procedure Rules seeking leave to appeal out of time. The respondent did not oppose the application and was absent at the hearing. Ms Shibanda, advocate for the applicant, explained that counsel could not trace the claimant to inform him of the judgment; the claimant, having lost his phone and the advocate's contacts, learned of the decision only when he visited the office to inquire about his case, by which time the statutory 30-day period had lapsed. Framing the sole issue as whether the applicant should be granted leave to file the appeal out of time, the court applied section 79G's 'good and sufficient cause' test, guided by Leo Sila Mutiso v Rose Hellen Wangari Mwangi as elaborated in Thuita Mwangi v Kenya Airways Ltd. It held the delay was not inordinate and constituted good cause. Relying on Thuita Mwangi, it declined to assess the arguability of the intended appeal, noting arguability is only a possible consideration, and invoked Butt v Rent Restriction Tribunal on exercising discretion so as not to prevent an appeal. The court allowed the application, granting leave to appeal out of time against the October 13, 2022 judgment, with no order as to costs.

Key legal issues

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01

Whether the applicant had good and sufficient cause for not filing the appeal within 30 days under section 79G of the Civil Procedure Act

Holding

Yes - the delay of roughly three and a half months was not inordinate, and the reason (the claimant being untraceable, having lost his phone and the advocate's contacts, and giving instructions late) constituted good cause

Reasoning

The court applied section 79G and the Thuita Mwangi/Mutiso criteria. Judgment was delivered October 13, 2022 and the application filed February 2023, which the court found not inordinate. The claimant's loss of his phone and contacts explained his untraceability and late instructions. The court declined to assess arguability, holding it only a possible criterion, and invoked Butt v Rent Restriction Tribunal on exercising discretion to enable appeals.

p. 3

Legal principles established

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  • An appeal may be admitted out of time if the appellant shows good and sufficient cause for not filing in time; the length of and reason for the delay are the primary considerations
  • In an extension-of-time application the court is not obliged to consider the chances of the appeal succeeding
  • Discretion to extend time should be exercised so as not to prevent an appeal

Court orders

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  1. 1.The applicant is granted leave to appeal out of time against the judgment of the magistrate court delivered on the October 13, 2022 in Kakamega Civil Suit No E42 of 2020
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 50 rule 6
  • Civil Procedure RulesOrder 40 rule 1

Cases cited (3)

  • Thuita Mwangi v Kenya Airways Ltd
    [2003] eKLR
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    (Civil Application No Nai 255 of 1997) (1999)2 EA
  • Butt vs Rent Restriction Tribunal
    (1982) KLR 417
On appeal from
Magistrate's Court at Kakamega
Kakamega Civil Suit No E42 of 2020
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Order 50 rule 6 and Order 40 rule 1 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, "Paul v West Kenya Sugar Co. Limited (Miscellaneous Application E001 of 2023) [2023] KEELRC 487 (KLR)", Case Analysis (2023). Notice of Motion dated January 26, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/487/eng@2023-02-22

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