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ELCAllowedNotice of Motion dated 14th April 2025 (arising from Ukwala PMELC No. 21 of 2020)

Odawa v Onginjo & another (Environment and Land Appeal E018 of 2025) [2025] KEELC 7912 (KLR)

High Court of Kenya
13 November 2025
1,604 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The High Court in Siaya gave a litigant more time to appeal after two lawyers each mistakenly assumed the other had filed, but ordered them to pay the other side's costs.

What this practically means

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Executive summary

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This was a Notice of Motion dated 14th April 2025 brought under sections 1A, 1B, 3A and 95 of the Civil Procedure Act and Order 50 Rule 6 and Order 51 of the Civil Procedure Rules, 2010, seeking enlargement of time to file an appeal against the judgment in Ukwala PMELC No. 21 of 2020 delivered on 28 February 2025. The application was supported by an affidavit of the Applicant's counsel, Eric O. Ojuro, who explained that the Applicant had two trial counsel, each of whom believed the other had filed the appeal; the omission was discovered on 10 April 2025. The 1st Respondent opposed through grounds of opposition, arguing that the Applicant had not shown sufficient cause under section 79G of the Civil Procedure Act and that granting the extension would reward indolence. In a ruling delivered at Siaya on 13 November 2025, A.E. Dena J applied the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat v IEBC. The court held that the confusion between two counsel constituted reasonable cause for the delay; that the roughly 17-day delay in bringing the application was excusable and not inordinate; and that any prejudice to the Respondent, such as loss of finality or increased costs, could be compensated by costs, invoking the principle from Waljee's (Uganda) Ltd that costs heal every sore in litigation. The application was allowed: time to appeal was enlarged, with the appeal to be filed within 14 days. However, costs of the application were awarded to the Respondent, and the file was ordered closed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant has demonstrated good and sufficient cause for not filing the appeal within the 30 days prescribed by section 79G of the Civil Procedure Act
  2. 2.Whether the application for enlargement of time was brought without undue delay
  3. 3.Whether the Respondent would suffer prejudice incapable of compensation by costs if the extension is granted

Key legal issues

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01

Whether the Applicant showed good and sufficient cause for the delay in filing the appeal

Holding

The confusion between two trial counsel, each believing the other had filed the appeal, constituted reasonable cause for the delay.

Reasoning

The court accepted that lapses of this kind occur where there is poor coordination between two counsel representing a litigant. It found the explanation understandable and held that reasonable cause for the delay had been demonstrated, satisfying the proviso to section 79G.

p. 3
02

Whether the 17-day delay in bringing the application was undue delay

Holding

A delay of about 17 days beyond the 30-day statutory period was excusable and not inordinate.

Reasoning

Judgment was delivered on 28 February 2025 and the application was filed on 28 April 2025, roughly 17 days outside the statutory window. The court held that a delay of this length is excusable and not inordinate, so the application was brought without unreasonable delay under the Salat principles.

p. 3
03

Whether the Respondent would suffer prejudice not compensable by costs

Holding

Any prejudice from the extension, such as loss of finality and increased costs, is capable of compensation by an award of costs.

Reasoning

Applying the principle that costs are the panacea which heals every sore in litigation, the court found that loss of finality and increased costs alleged by the Respondent do not constitute prejudice incapable of cure by costs, and so the extension was granted.

p. 4

Legal principles established

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  • The key test under section 79G is whether the applicant had good and sufficient cause for not filing the appeal in time, and the power to enlarge time is discretionary and must be exercised judiciously.
  • Where the delay is short, explained, and no uncompensatable prejudice is shown, substance should be preferred over procedural lapses and extension of time may be granted.

Court orders

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  1. 1.Time for filing the appeal from the judgment in Ukwala PMELC No. 21 of 2020 delivered on 28/02/2025 is enlarged
  2. 2.Costs of the application are awarded to the Respondent
  3. 3.The appeal shall be filed within the next 14 days of the ruling
  4. 4.The present file shall be closed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Ukwala Principal Magistrate's Court (Environment and Land)
Ukwala PMELC No. 21 of 2020
Jurisdiction invoked
Sections 1A, 1B, 3A and 95 of the Civil Procedure Act; Order 50 Rule 6 and Order 51 of the Civil Procedure Rules, 2010; Section 79G proviso

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the foregoing is that the application is merited and must be allowed.
p. 4Disposition - extension of time granted
Costs of the application are awarded to the Respondent
p. 4Costs order
The appeal shall be filed within the next 14 days of this ruling.
p. 4Final orders - timeline for filing appeal
The present file shall be closed. It is so ordered.
p. 4Final orders - closure of file
It is my finding that there is reasonable cause for the delay.
p. 3Good and sufficient cause under section 79G

Issues in the judgment

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minor

The Applicant is referred to inconsistently, at times as 'Applicant' and at times as 'Appellant' in the submissions section, and the Respondent's submissions use the plural 'we', suggesting borrowed submissions.

minor

The judgment does not state the actual case number of the motion before the High Court; it is identified only by its date and by reference to the lower court matter.

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, "Odawa v Onginjo & another (Environment and Land Appeal E018 of 2025) [2025] KEELC 7912 (KLR)", Case Analysis (2025). Notice of Motion dated 14th April 2025 (arising from Ukwala PMELC No. 21 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7912/eng@2025-11-13

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