Owino (Suing as the Administrator of the Estate of Anditi Nyaongo- Deceased) v Oluoch (Sued as the Administrator of the Estate of Domtila Atieno Okech- Deceased) (Miscellaneous Application 1 of 2023) [2024] KEELC 334 (KLR)
The bottom line
#The High Court in Homa Bay refused a woman permission to appeal late because she could not explain why she waited seven months.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the applicant should be granted leave to appeal out of time against the judgment and consequential decree of the trial court
- 2.Whether or not the court should order a stay of execution of the judgment in Homa Bay CMCC No. E016 of 2021, pending the hearing and determination of the intended appeal
Key legal issues
#Whether the delay of about seven months in seeking leave to appeal out of time was excusable
The delay was inexcusable; no reasonable and acceptable explanation was advanced, and the application failed to meet the test for the court's discretionary extension of time.
Judgment was delivered on 27th July 2022, the decree extracted on 7th October 2022, and a certificate of costs issued on 2nd December 2022. The applicant had counsel on record throughout the trial, contradicting her claim of ignorance of the judgment. Applying the Salat criteria and the Njoroge v Kimani test, the delay was foreseeable and within the party's control, and the explanation was unacceptable. The application was therefore an afterthought and the discretion could not be exercised in her favour.
Whether stay of execution of the trial court's judgment should issue pending the intended appeal
No stay could issue because the application for extension of time had failed.
Stay of execution under Order 42 Rule 6 was contingent on the intended appeal proceeding, which in turn depended on leave to appeal out of time. Having found the delay inexcusable and the application an afterthought, the court declined stay as sought in prayer 4, since the foundation for the intended appeal had collapsed.
Legal principles established
#- An application for extension of time must show good and substantial reasons for the delay and prima facie good cause why the intended appeal should be heard
- Excusable delays are unforeseeable and beyond the control of the party; without a reasonable and acceptable explanation for the delay, prospects of success are immaterial
Court orders
#- 1.The Notice of Motion dated 15th March 2023 was dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrates' Court, Homa Bay
- Homa Bay CMCC No. E016 of 2021
- Jurisdiction invoked
- Sections 1A and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya as read with Order 42 Rule 6(2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Article 159 of the Constitution of Kenya, 2010
Relief refused
#Leave to appeal out of time against the trial court's judgment and decree
No reasonable and acceptable explanation for the delay was advanced; the delay was inexcusable and the application an afterthought
Stay of execution of the trial court's judgment pending the intended appeal
Having failed to secure extension of time, the applicant did not meet the test for stay; no stay could issue
Costs
Dismissed with costs to the respondent
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.
Accordingly, the application by way of a Notice of motion dated 15th March 2023, be and is hereby dismissed with costs to the respondent.
I find and hold that the delay is inexcusable and that it has not been satisfactorily explained. Indeed, the application has failed to meet the test for the court to exercise its discretion in the applicant’s favour.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court
Issues in the judgment
#The applicant is described as acting in person on the motion, but submissions were filed through Migele and Company Advocates, and the judgment notes the applicant had counsel on record throughout the trial court proceedings
The respondent is not named anywhere in the judgment; only '1st respondent' is referenced
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Owino (Suing as the Administrator of the Estate of Anditi Nyaongo- Deceased) v Oluoch (Sued as the Administrator of the Estate of Domtila Atieno Okech- Deceased) (Miscellaneous Application 1 of 2023) [2024] KEELC 334 (KLR)", Case Analysis (2024). Not stated in the judgment (application by Notice of Motion dated 15th March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/334/eng@2024-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.