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ELRCAllowedNotice of Motion dated January 12, 2023 (arising from Kisumu Chief Magistrates Court, ELRC Cause No 163 of 2021)· [2023] KEELRC 691 (KLR)

Simba Corporation t/a Acacia Premier Hotel v Kirui (Miscellaneous Application E002 of 2023) [2023] KEELRC 691 (KLR)

High Court of Kenya
23 March 2023
CBChristine N. Baari
1,502 words in judgment
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The bottom line

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Kenya's High Court let Simba Corporation appeal late because its lawyer missed the judgment, and blocked seizure of its property pending that appeal.

What this practically means

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Executive summary

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By a Notice of Motion dated January 12, 2023, Simba Corporation T/A Acacia Premier Hotel, the Applicant, sought leave to appeal out of time against the judgment of Hon. Telewa delivered on October 7, 2022 in Kisumu Chief Magistrates Court ELRC Cause No 163 of 2021 (Harun Kimutai Kirui v Simba Corporation), together with a stay of execution and deemed filing of its draft Memorandum of Appeal. The application was precipitated by the Respondent's issuance of warrants of attachment and proclamation of the Applicant's property on January 10, 2023. The Applicant blamed its unawareness of the judgment on counsel holding brief who failed to relay the outcome. The Respondent opposed, asserting laches and actual knowledge, including presence through counsel at the taxation of the bill of costs. Justice Christine N. Baari framed a single issue: whether the application was merited. Relying on the Salat principles for extension of time, Section 79G of the Civil Procedure Act, and Articles 48 and 50(1) of the Constitution, the court attributed the delay to mistake of counsel, holding that such mistake should not be visited on an innocent litigant. On stay, the court applied Order 42 Rule 6, reasoning that refusal would render the intended appeal nugatory. The application was allowed: leave to appeal out of time was granted, the annexed Memorandum of Appeal deemed filed, stay of execution issued pending the appeal, and costs were ordered to abide the appeal.

Key legal issues

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01

Extension of time to file an appeal under Section 79G of the Civil Procedure Act

Holding

Extension granted on the ground of mistake of counsel, in furtherance of Articles 48 and 50 of the Constitution

Reasoning

The delay of about two months was attributed to counsel holding brief at the delivery of the judgment. Applying the Salat principles, the court weighed the cause of delay and prejudice, and held that mistake of counsel amounts to sufficient cause. Access to justice and fair hearing rights under Articles 48 and 50(1) tilted the discretion in the Applicant's favour.

p. 3
02

Stay of execution pending the intended appeal under Order 42 Rule 6

Holding

Stay granted because refusing it would render the freshly permitted appeal nugatory

Reasoning

The court applied Order 42 Rule 6 principles, holding that the purpose of a stay is to ensure a successful appeal is not rendered nugatory. Having granted leave to appeal out of time, it would be illogical to deny stay and expose the Applicant to execution, including the proclamation of property already carried out.

p. 4

Legal principles established

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  • Mistake of counsel should not be visited on an innocent litigant, and may constitute sufficient cause for extension of time.
  • Granting leave to appeal out of time but refusing stay would render the intended appeal nugatory; the sole purpose of a stay is to preserve the appeal.

Court orders

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  1. 1.Leave granted to the Applicant to appeal out of time against the judgment in Kisumu CM ELRC Cause No 163 of 2021
  2. 2.The Memorandum of Appeal annexed to the application deemed as duly filed
  3. 3.Stay of execution granted against the judgment and decree of Hon. Telewa delivered on October 7, 2022, pending hearing and determination of the appeal
  4. 4.Costs to abide the appeal

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 Rule 6
  • Constitution of KenyaArticles 48 and 50(1)

Cases cited (3)

  • Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & Others
    Supreme Court Application No 16 of 2014, [2014] eKLR
  • Kamlesh Mansukhalal Damki Patni v Director of Public Prosecution & 3 Others
    [2015] eKLR
  • Belinda Mural & 9 Others v Amos Wainaina
    [1978] eKLR
On appeal from
Kisumu Chief Magistrates Court
ELRC Cause No 163 of 2021, Harun Kimutai Kirui v Simba Corporation T/A Acacia Premier Hotel
Jurisdiction invoked
Section 79G of the Civil Procedure Act (enlargement of time) and Order 42 Rule 6 of the Civil Procedure Rules (stay of execution)

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, "Simba Corporation t/a Acacia Premier Hotel v Kirui (Miscellaneous Application E002 of 2023) [2023] KEELRC 691 (KLR)", Case Analysis (2023). Notice of Motion dated January 12, 2023 (arising from Kisumu Chief Magistrates Court, ELRC Cause No 163 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/691/eng@2023-03-23

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