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High CourtDismissedNot stated in judgment (application dated 11th February 2013)· [2013] KEHC 3137 (KLR)

Applicant v Respondent (application for extension of time to appeal from Bungoma CMCCC No. 585 of 2009)

High Court of Kenya
30 May 2013
603 words in judgment
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The bottom line

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If you miss an appeal deadline in Kenya, you must prove a very strong reason for the delay to get more time.

What this practically means

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Executive summary

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The applicant sought extension of time to file an appeal against the judgment and decree in Bungoma CMCCC No. 585 of 2009, delivered on 25th February 2010, together with costs. The application was supported by an affidavit sworn on 11th February 2013 and a supplementary affidavit sworn on 2nd April 2013, in which the applicant contended the delay was not inordinate and that the pendency of Bungoma HCC No. 65 of 2010 could not affect the determination of the application. The respondent opposed, swearing that the applicant had neither vacated his land nor paid the assessed costs, had commenced fresh proceedings in Bungoma HCC No. 65 of 2010, and had long been aware of the judgment, making the application an afterthought. The court, per A. Omollo J, noted the applicant's earlier attempt to set aside the judgment was dismissed on 6th January 2011, that he was represented by counsel throughout, and that he offered no explanation for the roughly three-year delay. Applying the principles in Leo Sila Mutiso v Rose Hellen Wanyari - length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent - and Section 79G of the Civil Procedure Act, the court held the applicant failed to demonstrate good and sufficient cause or prospects of success, and that the respondent would be prejudiced. The application dated 11th February 2013 was dismissed with costs to the respondent.

Key legal issues

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01

Whether extension of time to appeal should be granted

Holding

Application dismissed; discretion not exercised in applicant's favour

Reasoning

The judgment was delivered on 25th February 2010 and the application was made in February 2013, about three years later. The applicant, though represented by counsel, gave no reason for the delay, did not demonstrate the appeal had chances of success, and the respondent remained unpaid and in occupation, having also faced fresh proceedings in Bungoma HCC No. 65 of 2010.

p. 2

Legal principles established

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  • Extension of time to appeal is discretionary and is guided by length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent
  • Under Section 79G of the Civil Procedure Act, an appellant must show good and sufficient cause for not filing an appeal in time

Court orders

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  1. 1.Dismissal of the application dated 11th February 2013
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 79G

Cases cited (1)

  • Leo Sila Mutiso vs. Rose Hellen Wanyari
    Civ. Appl. No. Nai. 255 of 1997 (unreported)

    Factors the court considers in deciding whether to grant extension of time to appeal

On appeal from
Senior Principal Magistrate's Court, Bungoma
Bungoma CMCCC No. 585 of 2009
Jurisdiction invoked
Section 79G of the Civil Procedure Act (extension of time to appeal)

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, "Applicant v Respondent (application for extension of time to appeal from Bungoma CMCCC No. 585 of 2009)", Case Analysis (2013). Not stated in judgment (application dated 11th February 2013). Source: 

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