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Case Brief · caselaw.co.ke
High CourtPartially AllowedCivil Appeal 14 of 81 (application for extension of time to file an intended appeal from Civil Appeal 14 of 1981, High Court at Kakamega)· [1984] KEHC 43 (KLR)

Clement Wamunyama v Wafula Nabiriki

Court of Appeal of Kenya
17 July 1984
1,386 words in judgment
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal let a late appellant continue his appeal over wrongly sold cattle, showing courts will extend time where the case has merit and no one is prejudiced.

What this practically means

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Executive summary

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Kneller JA of the Court of Appeal (Kisumu) determined an application by Clement Wamunyama for extension of time to file a notice of appeal and record of appeal against the High Court at Kakamega's judgment (Gicheru J, December 24, 1982) dismissing his first appeal. The underlying dispute arose from a claim for one cow valued at Shs 1,000, in which an ex parte judgment was set aside and the claim dismissed; the court broker had attached and sold eleven of Wamunyama's cattle for Shs 1,518.10 in execution. Wamunyama's subsequent suit for the eleven beasts was non-suited on a preliminary objection and his High Court appeal dismissed. The respondent opposed the extension, arguing the notice of appeal was filed out of time, unserved, and followed by a further 35-day delay, and sought security for costs. The court applied the extension-of-time criteria: arguable merit, absence of inordinate delay, and no undue prejudice. Concluding the case was borderline but that the applicant had a burning grievance (eleven cattle sold over one cow), that no undue prejudice would befall the respondent, and that the delay was not inordinate, the judge granted the application with lengthy timelines (30 days for service of the notice, 90 days for lodging the record with security for costs, 100 days for service), and ordered the applicant to pay the respondent the costs of the application in any event.

Key legal issues

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01

Extension of time to file appeal

Holding

Application granted; delay not inordinate, no undue prejudice, and the appeal had arguable merit.

Reasoning

The judge noted the notice of appeal was filed out of time, unserved, with a further 35-day delay; illness was asserted without medical chits. Nonetheless, the respondent conceded no prejudice, the unpaid decree sum remained intact, and the applicant's grievance (eleven cattle sold over one cow) showed arguable merit. Discretion exercised to grant a lengthy indulgent period.

p. 3
02

Maintainability of action against judgment creditor for wrongful execution

Holding

An action by a judgment debtor against a judgment creditor for damages for wrongful seizure and sale by a court broker could lie under section 72(1)(a) of the Civil Procedure Act and is not caught by section 79E.

Reasoning

Kneller JA, reviewing the intended second appeal, considered whether a judgment debtor may sue the judgment creditor for wrongful seizure and sale by a court broker in execution. He indicated such an action could be brought within section 72(1)(a) of the Civil Procedure Act and is not caught by section 79E, supporting the merit of the intended appeal.

p. 2

Legal principles established

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  • On an extension-of-time application the applicant must show merit in the intended appeal, that the delay is not inordinate, and absence of undue prejudice to the respondent.

Court orders

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  1. 1.Application granted; time for filing the notice of appeal in the registry of the High Court extended to such time as will make the filing of it in time
  2. 2.Copy of the notice of appeal to be served on the respondent's advocate, Mr Dhanjal, within 30 days
  3. 3.Record of appeal with certified copies of pleadings, proceedings, judgment and exhibits from the three courts, plus memorandum of appeal, to be lodged in the Kisumu sub-registry with security for costs within 90 days and served within 100 days
  4. 4.Applicant to pay the respondent the costs of this application in any event

Authorities

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Legislation

  • Judicature Act (Cap 8)section 6
  • Government Proceedings Act (Cap 40)section 4(5)
  • Civil Procedure Act (Cap 21)sections 72(1)(a), 79E
  • Court of Appeal Rulesrule 4

Cases cited (3)

  • Davis & Shirtliff Ltd v Attorney-General
    Court of Appeal 21 of 1978

    Liability/protection regarding acts of a court broker in execution (cited to Gicheru J)

  • Ladu Ltd v Sui
    The Times, November 24, 1983

    Principles on inordinate delay in extension of time applications

  • Cleophus Wasike v Mucha Swala
    Civil Application NAI 50 of 1983

    Extension of time principles

On appeal from
High Court of Kenya at Kakamega
Civil Appeal 14 of 1981
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time; thereafter the Court may extend time on such terms as it thinks just)

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, "Clement Wamunyama v Wafula Nabiriki", Case Analysis (1984). Civil Appeal 14 of 81 (application for extension of time to file an intended appeal from Civil Appeal 14 of 1981, High Court at Kakamega). Source: 

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