Mohamed Sheikh Farah (Suing as the administrator and legal representative of the estate of Khadija Tahira Nyanguthii) v Athman Aboud Athman & Others
The bottom line
#Missing a court deadline doesn't automatically disqualify you; you can ask the High Court for permission to file your appeal late if you have a valid reason.
What this practically means
#Executive summary
#Key legal issues
#Whether an application for leave to appeal out of time under section 79G is incompetent if the memorandum of appeal has not first been filed
The application is competent; the court may grant leave first, especially where a draft memorandum is annexed, guided by Article 159(2)(d) and the overriding objective.
The court found the contrary High Court decisions to be of concurrent jurisdiction and less persuasive. It preferred Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi, holding that requiring prior filing raises procedural technicality above substance and offends the mischief rule and Article 159(2)(d). The applicant had annexed a draft memorandum as MSF-2.
Whether the delay of about 24 days was inordinate and sufficiently explained
The delay was not inordinate; the application was brought less than a month after time ran out and a request for proceedings was made within days of the judgment.
Applying the Mwangi v Kenya Airways factors, the court found the delay explained by the failure to obtain certified copies of the judgment and proceedings despite follow-up, circumstances said to be beyond the applicant's control, and found the application not an abuse of process or afterthought.
Whether the intended appeal is arguable and whether the respondents would suffer prejudice
The draft memorandum disclosed arguable grounds, and no substantial adverse effect on the respondents was shown beyond losing the fruits of the judgment.
The court reiterated that only arguability, not probability of success, need be demonstrated at this stage, and found the applicant had discharged that burden on perusal of the draft memorandum. It saw no substantial prejudice to the respondents other than permitting exercise of the right of appeal.
Legal principles established
#- An applicant under the proviso to section 79G need not first file the memorandum of appeal before seeking leave to appeal out of time; such a reading is impermissibly formalistic.
- On an extension-of-time application, the applicant need only show arguability of the intended appeal, not a high probability of success.
Court orders
#- 1.Leave granted to the applicants to file the appeal out of time
- 2.The Memorandum of Appeal be filed and served within 10 days from the date of the order
- 3.In default of filing within 10 days, the application shall stand dismissed
- On appeal from
- Chief Magistrate's Court (subordinate court)
- CMCC No. 2345 of 2015
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (proviso permitting admission of appeal out of time for good and sufficient cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Sheikh Farah (Suing as the administrator and legal representative of the estate of Khadija Tahira Nyanguthii) v Athman Aboud Athman & Others", Case Analysis (2020). Not stated in the judgment (application dated 22nd July 2019, arising from CMCC No. 2345 of 2015). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.