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High CourtDismissedNotice of Motion dated 20th August 2025 (arising from Mombasa MCCC No. 710 of 2019)

Abdalla Hussein v Musali Tandasi & Another

High Court of Kenya
24 July 2026
2,670 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The High Court in Mombasa refused to let a man appeal six months late, ruling that blaming your lawyer for not updating you is not a valid excuse.

What this practically means

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Executive summary

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The Applicant, Abdalla Hussein, the second defendant in Mombasa MCCC No. 710 of 2019, sought leave to appeal out of time against a judgment of 13th February 2025 in which he and the first defendant were held jointly and severally liable to the plaintiff, Musali Tandasi, in Kshs. 4,353,035 for injuries from a 2014 road traffic accident. He also sought a stay of proceedings in a subsequent declaratory suit (MCCC No. E903 of 2025) against his insurer, Takaful Insurance of Africa, seeking Kshs. 3,000,000, the statutory limit under the Insurance (Motor Vehicles Third Party Risks) Act. His explanation for the delay of over six months against the thirty-day limit in section 79G of the Civil Procedure Act was that his erstwhile advocates, Garane & Somane, failed to inform him or his insurer of the judgment. The first respondent opposed, producing correspondence of 16th May 2025 showing notice of the judgment and the intended declaratory suit. The court held that counsel's failure to communicate is not, of itself, good and sufficient cause; the client retains an independent duty to pursue his matter; the allegation against the advocates was uncorroborated and unaccompanied by any change of advocates; and no date of actual knowledge was given. The stay of proceedings was also refused because Order 42 presumes an appeal already filed, and none was pending since leave had not been granted. The Notice of Motion was dismissed with costs to the first respondent, and no order as to costs in favour of the second respondent.

Key legal issues

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01

Extension of time under section 79G of the Civil Procedure Act

Holding

The Applicant failed to demonstrate good and sufficient cause for the six-month delay

Reasoning

The court weighed the length of delay, the explanation (advocate's failure to communicate), the absence of corroboration from the advocates blamed, no notice of change of advocates, no stated date of actual knowledge of the judgment, and the absence of any real contest on liability at trial. Following Gichana Gathuku and Rajesh Rughani, the client retains an independent duty to pursue his matter; counsel's silence is not a shield.

p. 4
02

Stay of proceedings pending an intended but unfiled appeal

Holding

The Court has no power to stay proceedings in aid of an appeal that has not been instituted

Reasoning

Order 42 presumes an appeal already filed and pending. Granting a stay on a bare miscellaneous application where leave to appeal is itself being sought would allow a litigant to obtain stay relief without ever filing an appeal, offending the letter and policy of Order 42.

p. 5

Legal principles established

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  • Lack of communication by counsel as to the outcome of a suit does not, by itself, constitute good and sufficient cause for extension of time under section 79G; the client's remedy lies in professional negligence against the advocate
  • A stay of proceedings pending appeal cannot be granted where no appeal has been filed, including where the appeal's institution depends on leave sought in the same application

Court orders

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  1. 1.The Notice of Motion dated 20th August 2025 is dismissed
  2. 2.The 1st Respondent shall have the costs of the application
  3. 3.No order as to costs in favour of the 2nd Respondent
On appeal from
Chief Magistrate's Court, Mombasa
MCCC No. 710 of 2019, Musali Tandasi v John Moki Jumaa & Abdalla Hussein
Jurisdiction invoked
Sections 1A, 1B, 3A and 79G of the Civil Procedure Act; Order 42 Rule 6(2) and Order 50 Rule 5 of the Civil Procedure Rules, 2010; inherent powers of the Court

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, "Abdalla Hussein v Musali Tandasi & Another", Case Analysis (2026). Notice of Motion dated 20th August 2025 (arising from Mombasa MCCC No. 710 of 2019). Source: 

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