Mwanzo v Frodak Kenya Limited & another (Miscellaneous Application E019 of 2022) [2023] KEELRC 974 (KLR)
The bottom line
#The High Court at Bungoma dismissed an application to appeal late because the applicant gave an unsubstantiated excuse and left unexplained gaps in the timeline.
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 applicant had good and sufficient cause for not filing the appeal in time pursuant to section 79G of the Civil Procedure Act
- 2.Whether the delay of 42 days was inordinate and satisfactorily explained
- 3.Whether the respondents would be prejudiced if the extension was granted
Key legal issues
#Whether the applicant demonstrated good and sufficient cause under section 79G of the Civil Procedure Act
No sufficient cause was shown; the explanation of counsel's maternity leave was unsubstantiated and left material unexplained gaps
The court found the judgment was delivered on 31st August 2022 and the application was lodged 72 days later, making 42 days of delay. Counsel claimed maternity leave but annexed no evidence of it. Counsel obtained the judgment on 27th September 2022, still within time, yet gave no explanation for not filing until 11th November 2022. Following Musinga JA in Attorney General v Law Society of Kenya, the explanation was neither rational nor free of gaps.
Whether Article 159(2)(d) could cure the delay
Filing an appeal out of time is not a procedural technicality curable by Article 159(2)(d)
The applicant cited election jurisprudence on Article 159(2)(d), but the court found the citation misleading and held, drawing on the Supreme Court's decision in Raila Odinga, that Article 159(2)(d) does not oust express statutory timelines. Section 79G itself conditions extension on good and sufficient cause, and non-compliance is therefore not a mere technicality.
Whether the respondents would suffer prejudice if extension was granted
The respondents would be prejudiced, being entitled to expect that litigation had ended four months after the trial judgment
Applying the fourth Thuita Mwangi criterion and Edith Gichugu Koine, the court found that the 1st respondent had waited four years for the verdict and the respondents were enjoying the fruits of judgment. Awakening from four months of slumber to instruct counsel to appeal amounted to abuse of court process and annoyance of the respondents.
Counsel's conduct in citing a non-existent quote from case law
The court condemned the applicant's citation of a fabricated quote summarising holdings rather than quoting a specific decision
The applicant quoted a passage said to come from several election decisions, but the court checked Kenya Law and found no such quote existed in those decisions. The court criticised this as abhorring conduct, noting that quotes should be specific to the particular decision and paragraph, especially in an era of paragraph-numbered judgments.
Legal principles established
#- An appeal out of time may only be admitted if the appellant shows good and sufficient cause; unexplained gaps in the sequence of events defeat the application
- Delay in filing an appeal is not a mere procedural technicality curable under Article 159(2)(d) of the Constitution
- A successful party is entitled to the fruits of its judgment; discretion on extension of time must weigh prejudice to the successful party
Court orders
#- 1.The application dated 4th November 2022 is dismissed
- 2.Costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court at Kakamega
- Kakamega MCELR No. 194 of 2019
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act; Order 50 Rule 6 and Order 40 Rule 1 of the Civil Procedure Rules
Relief refused
#Leave to file appeal out of time against the judgment delivered on 30th August 2022
No good and sufficient cause shown; 42 days of inordinate, unexplained delay with material gaps, and prejudice to the respondents
Costs
Application dismissed with costs to the respondents.
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.
In the upshot the application dated 4th November 2022 is dismissed with costs to the respondents.
The court is satisfied that the delay of 42 days was inordinate and was not explained.
…Suficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubts in a judge's mind.
It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary.
The court finds that the issue of filing appeal out of time is not a procedural technicality as envisaged under Article 159 (2)(d) of the Cconstitution
Issues in the judgment
#The judgment states the judgment sought to be appealed was delivered on 30th August 2022 in one place and 31st August 2022 in another
Delay computation is internally inconsistent: 72 days post-judgment is described as making 42 days of delay
Misspellings/typographical errors in the judgment text, e.g. 'Cconstitution' and 'afiordable'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwanzo v Frodak Kenya Limited & another (Miscellaneous Application E019 of 2022) [2023] KEELRC 974 (KLR)", Case Analysis (2023). Not stated in judgment (application dated 4th November 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/974/eng@2023-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.