Moses Lumbasi Simiyu & another v John Kaptoo Ngeywo & another [2020] KEELC 3073 (KLR)
The bottom line
#A Kenyan court let late appeal filers proceed because a one-month delay was explained, but ordered their lawyer to personally pay the costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicants have shown good and sufficient cause under Section 79G of the Civil Procedure Act to warrant leave to appeal out of time
- 2.Whether the delay in filing the appeal/application was inordinate and whether it was explained
- 3.Whether the Respondents would suffer prejudice if the extension is granted
- 4.Whether the intended appeal is arguable
Key legal issues
#Good and sufficient cause under Section 79G CPA
The delay of about one month was not inordinate and was satisfactorily explained; a good basis was laid for exercising the Court's discretion
The Court applied Section 79G's proviso and the Bagajo and Salat principles. Counsel's failure to file arose from his nomination as a judge, handover of his firm, leave, and his clerk Brian's oversight. Counsel took full responsibility, and a party should not suffer for counsel's mistake per Chemwolo v Kubende.
Prejudice to Respondents
No cognisable prejudice: the Respondents had themselves appealed the same judgment in Bungoma Civil Appeal No 99 of 2019 and no evidence of the alleged Kshs. 100,000/= payment was availed
The Respondents claimed they had paid counsel Kshs. 100,000/= and would incur more fees. The Court found no evidence of payment, noted costs would be determined at taxation, and that the Respondents were themselves aggrieved and appealing the same judgment, so they could not claim prejudice.
Arguability of intended appeal
The intended appeal was arguable, notably on whether the award of Kshs. 200,000/= for loss of land and breach of trust was merited when not sought
The Court examined the impugned judgment and pleadings and identified an arguable issue: an award made without a corresponding prayer. It held applicants need only demonstrate arguability, not high prospects of success.
Distinguishing Martin Wanjala Wafula v Margaret Wairimu Mbirua
That authority, cited by the Respondents, was distinguishable because it involved about a year's unexplained delay
In Wafula the application came nearly a year after judgment, which was found inordinate and unexplained; here the delay was about one month and was explained, so the authority did not aid the Respondents.
Legal principles established
#- Whether to grant extension of time is a judicial discretion exercised on a case-by-case basis requiring a plausible explanation for the delay
- A party should not be punished for the mistake of their legal adviser
- An applicant for extension need only show arguability, not high chances of success
Court orders
#- 1.The application dated 25th November 2019 is allowed
- 2.The appeal be filed within 7 days of this ruling
- 3.The Respondents are awarded throw away costs assessed at Kshs. 10,000/= payable by Applicants' counsel
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Bungoma
- BUNGOMA CMCC NO 272 OF 2011
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A and 79G of the Civil Procedure Act and Orders 50 Rule 6 and 51 Rule 1 of the Civil Procedure Rules
Relief refused
#Applicant's prayer for costs of the application to be provided for against the Respondents
Counsel for the Applicant admitted his office was to blame; costs were instead awarded against Applicants' counsel personally
Costs
Respondents awarded throw-away costs of Kshs. 10,000/= payable by the Applicants' counsel personally.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
1. The application dated 25th November 2019 is allowed. 2. The appeal be filed within 7 days of this ruling. 3. The Respondents are awarded throw away costs which I assess at Kshs. 10,000/= payable by Applicants’ counsel.
It is a generally accepted principle that a party should not suffer because of the mistake of his legal adviser
The Applicant must give a plausible explanation for the delay before such discretion is exercised in his favour.
It is not clear to me therefore what prejudice the Respondents are referring to that ought to stand in the way of the Applicant’s intended appeal when they themselves are also appealing against the same Judgement.
Issues in the judgment
#The judicial officer's name is not stated anywhere in the judgment; the coram reads only 'JUDGE'
The judgment is styled a 'ruling' on an application rather than a judgment after trial
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Lumbasi Simiyu & another v John Kaptoo Ngeywo & another [2020] KEELC 3073 (KLR)", Case Analysis (2020). Bungoma Civil Appeal (extension of time application) — Notice of Motion dated 25th November 2019, arising from BUNGOMA CMCC NO 272 OF 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3073/eng@2020-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.