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High CourtAllowedApplication dated 16th September 2019 (arising from Embu CMCC No. 26 of 2006)· [2020] KEHC 5621 (KLR)

Applicant v Respondent (Application for leave to appeal out of time)

High Court of Kenya
27 May 2020
1,468 words in judgment
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·~6 min to read original · ~4 min brief

The bottom line

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If you are delayed in filing an appeal because you are waiting for court documents, the court may grant you an extension if your case has merit.

What this practically means

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Executive summary

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The applicant sought leave to appeal out of time against the judgment in Embu CMCC No. 26 of 2006 delivered on 8th October 2018. He applied for certified copies of the proceedings and judgment on 3rd November 2018, which were supplied on 7th August 2019, by which time the statutory thirty-day period under section 79G of the Civil Procedure Act had lapsed. The application was filed on 10th December 2019, more than a year after judgment. The respondent opposed, arguing inordinate delay: the proceedings were signed and certified on 3rd December 2018 but the applicant only collected them in August 2019, took about ten days to file the application, and had not demonstrated the appeal's chances of success; the respondent also claimed prejudice from reopening concluded litigation. The court framed a single issue: whether the applicant was entitled to an extension of time. Applying section 79G and the factors in Mwangi v Kenya Airways Ltd (period and reason for delay, arguability, prejudice, compliance with time limits, and administration of justice), the court held the delay was not inordinate because even on the respondent's version the appeal period had lapsed before the proceedings were ready. The respondent would suffer no adverse effects, and the applicant need only show arguability, not a high probability of success; the grounds of appeal were found plausible. The court granted leave to appeal out of time, directed that the appeal be filed within seven days failing which the orders would stand vacated, and ordered each party to meet their own costs.

Key legal issues

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01

Whether the applicant is entitled to an extension of time to lodge his appeal under section 79G of the Civil Procedure Act

Holding

Leave granted; the delay was not inordinate because the certified proceedings were not availed in time, and no prejudice would be caused to the respondent.

Reasoning

The court applied the Mwangi v Kenya Airways factors. The applicant applied for proceedings on 3/11/2018 but they were only supplied on 7/08/2019; even on the respondent's version the appeal period had lapsed by the time proceedings were ready, so the delay was not inordinate. The grounds of appeal were found plausible and the respondent would suffer no adverse effects.

p. 2
02

Whether the intended appeal is arguable

Holding

The applicant need only show arguability, not a high probability of success; the grounds of appeal were found plausible.

Reasoning

The court held that at the extension stage the applicant is not required to persuade the appellate court of a high probability of success. Without the benefit of the proceedings, the judge perused the grounds of appeal and found them plausible, leaving their merits to the hearing of the appeal.

p. 2

Legal principles established

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  • An applicant for extension of time must show good cause; the discretion is exercised judiciously on a case-by-case basis on sufficient material.
  • Factors for extension of time: period of delay, reason for delay, arguability of appeal, prejudice to respondent, importance of compliance with time limits, and effect on administration of justice.

Court orders

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  1. 1.The applicant is granted leave to appeal out of time against the judgment of the trial court in Embu CMCC No. 26 of 2006 delivered on the 8/10/2018
  2. 2.The appeal shall be filed within seven (7) days in default of which these orders will stand vacated
  3. 3.Each party to meet their own costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G

Cases cited (3)

  • Feroz Begum Qureshi and Another v Maganbhai Patel and Others
    [1964] EA 633

    There is no difference between the words 'sufficient cause' and 'good cause'.

  • Daphne Parry v Murray Alexander Carson
    [1963] EA 546

    Extension provisions should receive liberal construction to advance substantial justice, but courts must guard against sympathy where there is no valid excuse for delay.

  • Mwangi v Kenya Airways Ltd
    [2003] KLR

    Factors for exercising discretion to extend time to file an appeal out of time.

Jurisdiction invoked
Section 79G of the Civil Procedure Act (proviso admitting appeals out of time for good and sufficient cause)

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 leave to appeal out of time)", Case Analysis (2020). Application dated 16th September 2019 (arising from Embu CMCC No. 26 of 2006). Source: 

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