Ojwang & another v Adero & 2 others (Miscellaneous Application E019 of 2024) [2025] KEELC 7437 (KLR)
The bottom line
#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 application for leave to appeal out of time has merit
Key legal issues
#Whether the applicant demonstrated good and sufficient cause under Section 79G of the Civil Procedure Act to warrant extension of time
Counsel's inadvertent failure to file the memorandum of appeal within 30 days, with prompt responsibility taken and no non-compensable prejudice to the respondent, constituted sufficient reason
The court accepted the criteria in Sala and First American Bank: length of and reasons for delay, arguability and prejudice. Counsel admitted he was instructed in good time but through inadvertence delayed three months. The court held the respondent's prejudice (costs and enjoyment of judgment) was adequately compensable by costs, and that a litigant should not be punished for counsel's mistake where a statutory window for extension exists.
Whether the intended appeal was arguable
The court declined to pronounce on merits but found the issues raised deserved to be canvassed on appeal
The court deliberately avoided any detailed merits assessment, holding only that the issues set out in the draft memorandum of appeal warranted full argument in the appeal itself, consistent with the arguability criterion without pre-judging the appeal.
Whether stay of execution should be granted pending appeal
Prayer treated as abandoned for want of submissions
The applicant sought stay of execution pending appeal but did not address the court on that relief; the court accordingly treated the prayer as abandoned and made no order on it.
Legal principles established
#- Extension of time is an equitable remedy, not a right, granted at the court's discretion to a deserving party
- Sufficient reason for delay is assessed on the circumstances of each case; a litigant should not be shut out of the right of appeal merely for the counsel's inadvertence where prejudice is compensable in costs
Court orders
#- 1.Leave to appeal out of time against the judgment of Hon. J.P. Nandi (SPM) delivered on 24th September 2024 in MCELC No E013 of 2023 granted
- 2.The Memorandum of Appeal annexed admitted as filed within the stipulated time
- 3.The appeal to be filed within 10 days of the date of the ruling
- 4.Costs of the application and proceedings granted to the 1st respondent
- 5.The file to be closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Bondo
- MCELC No E013 of 2023
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (inherent discretion to admit appeals out of time)
Relief refused
#Stay of execution pending hearing and determination of the appeal (Prayer 5)
The applicant did not address the court on the prayer, which was treated as abandoned
Costs
Costs of the application and proceedings granted to the 1st 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.
Extension of time is not a right. It is an equitable remedy available to a deserving party at the discretion of the court.
I will not shut out the applicant from the seat of a right of appeal on the basis that litigation must come to end.
That leave to appeal out of time against the judgment of Hon. J.P. Nandi (SPM) delivered on the 24th September 2024 in MCELC No E013 of 2023 be and is hereby granted.
That the costs of this application and proceedings be granted to the 1st respondent.
Issues in the judgment
#Judgment refers to grounds and supporting affidavit 'on its face' of an application described only as 'the application the subject of this ruling'; the underlying suit number of this High Court matter is not stated
Prayer 5 sought stay of execution of the judgment, yet the court in its recital describes orders of stay of 'the Orders' of the subordinate court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ojwang & another v Adero & 2 others (Miscellaneous Application E019 of 2024) [2025] KEELC 7437 (KLR)", Case Analysis (2025). Application dated 18/12/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7437/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.