Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
High CourtStruck OutCivil Appeal (Bondo Principal Magistrate Civil Case Number 84 of 2015 appeal)

Willis J. Ochieng & Another v Samuel Abongo Asembo

High Court of Kenya
5 October 2020
RAR.E. Aburili
1,799 words in judgment
View original judgment Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Missing the legal deadline for an appeal without obtaining permission from the court means your case will be thrown out completely.

What this practically means

#

Executive summary

#
This was a first appeal to the High Court at Siaya against a judgment of the Bondo Principal Magistrate in Civil Case Number 84 of 2015, in which the respondent, Samuel Abongo Asembo, had sued the appellants, Willis J. Ochieng and Julius Odol Nobert, following a road traffic accident of 3rd April 2015 involving his motorcycle KMCZ 434P and their vehicle KAG 353B. The trial magistrate, by judgment dated 14.6.2019, found the appellants 100% liable and awarded the respondent general damages of KShs.1,300,000 and special damages of KShs.754,870 with costs. The appellants filed a memorandum of appeal dated 13th July 2019, lodged and paid for on 16th July 2019, raising eleven grounds against liability and quantum. Before addressing the merits, the court raised, suo moto, the competency of the appeal. It computed that the 30-day period under section 79G of the Civil Procedure Act expired on 14.7.2019, a Sunday, so under Order 50 Rule 3 the appeal should have been filed on 15.7.2019; filing on 16.7.2019 was out of time, and no extension of time had been sought or obtained. Relying on the Supreme Court's decisions in County Executive of Kisumu and Nicholas Salat, and the Court of Appeal in Patrick Kinya Kithinji, the court held that an appeal filed out of time without leave is a nullity, that the right of appeal lapses with the statutory period, and that a court cannot extend time on its own motion. The appeal was struck out as incurably incompetent, with each party bearing their own costs, and the file closed. The underlying judgment and decree were left undisturbed.

Key legal issues

#
01

Whether an appeal filed out of time without leave of court is competent

Holding

The appeal was incurably and fatally incompetent and was struck out in limine.

Reasoning

Judgment was delivered on 14.6.2019; the 30-day period under section 79G expired on 14.7.2019 (a Sunday), so under Order 50 Rule 3 the appeal ought to have been filed on 15.7.2019. It was instead lodged on 16.7.2019 without any extension of time sought or obtained. Citing the Supreme Court in County Executive of Kisumu and the Court of Appeal in Patrick Kinya Kithinji, the court held that filing out of time without leave is a jurisdictional defect not curable under Article 159.

p. 2

Legal principles established

#
  • An appeal filed out of time without leave of court is a nullity and incurably incompetent; the right of appeal lapses when the statutory period lapses.
  • A court cannot suo moto extend time for filing an appeal; extension must be sought by the party.

Court orders

#
  1. 1.The appeal filed on 16.7.2019 is struck out as incurably incompetent, having been filed out of time without leave of court
  2. 2.Each party to bear their own costs of the incompetent appeal
  3. 3.File closed

Authorities

#

Legislation

  • Civil Procedure ActSection 78
  • Civil Procedure ActSection 79G (including proviso)
  • Civil Procedure RulesOrder 42 Rule 13
  • Civil Procedure RulesOrder 50 Rule 3
  • Constitution of KenyaArticle 159

Cases cited (3)

  • County Executive of Kisumu Vs. County Government of Kisumu and 8 Others
    [2017] eKLR

    An appeal filed out of time without leave is irregular, a nullity and of no legal consequence.

  • Nicholas Kiptoo Korir Arap Salat Vs. I.E.B.C. and & Others
    [2014] eKLR

    Where law provides a time for doing an act, extension must be sought before proceeding once time lapses.

  • Patrick Kinya Kithinji Vs. Victor Mugira Marete
    [2015] eKLR

    Whether an appeal is filed out of time goes to jurisdiction; not curable under Article 159.

On appeal from
Principal Magistrate's Court, Bondo
Civil Case Number 84 of 2015
Jurisdiction invoked
First appellate jurisdiction under Section 78 of the Civil Procedure Act; appeal competency under Section 79G of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Willis J. Ochieng & Another v Samuel Abongo Asembo", Case Analysis (2020). Civil Appeal (Bondo Principal Magistrate Civil Case Number 84 of 2015 appeal). Source:

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