Brian Okuthe Odero v Aga Khan Hospital Kisumu [2020] eKLR Case Summary

Court
High Court of Kenya at Kisumu
Category
Civil
Judge(s)
T.W. Cherere
Judgment Date
October 23, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the Brian Okuthe Odero v Aga Khan Hospital Kisumu [2020] eKLR case summary, highlighting key legal findings, implications, and judicial reasoning. Discover insights into this important ruling.

Case Brief: Brian Okuthe Odero v Aga Khan Hospital Kisumu [2020] eKLR

1. Case Information:
- Name of the Case: Brian Okuthe Odero v. Aga Khan Hospital Kisumu
- Case Number: Misc Civil Application No. 134 of 2020
- Court: High Court of Kenya at Kisumu
- Date Delivered: October 23, 2020
- Category of Law: Civil
- Judge(s): T.W. Cherere
- Country: Kenya

2. Questions Presented:
The central legal issue presented to the court was whether the Applicant, Brian Okuthe Odero, should be granted leave to appeal out of time against the judgment delivered on February 19, 2020.

3. Facts of the Case:
The parties involved in this case are the Applicant, Brian Okuthe Odero, and the Respondent, Aga Khan Hospital Kisumu. The trial court had delivered a judgment in favor of the Respondent on February 19, 2020, in case KISUMU CMCC 353 OF 2012. The Applicant sought to appeal this judgment but filed a notice of motion on July 10, 2020, requesting leave to appeal out of time. The Applicant claimed that the delay in filing the appeal was due to the outbreak of the COVID-19 pandemic, which he argued hindered his ability to obtain necessary documents for his appeal.

4. Procedural History:
The Applicant's motion was filed under various sections of the Civil Procedure Act and Civil Procedure Rules. The application was supported by an affidavit from Collins Orieyo, the Applicant’s advocate, who reiterated the grounds for the motion and indicated the Applicant's willingness to provide security for the judgment. The Respondent opposed the application through a replying affidavit from Joseph Oduor Otieno, asserting that the judgment was delivered in the presence of both parties and that the delay explanation was insufficient since court operations were not fully suspended until March 16, 2020.

5. Analysis:
Rules:
The court considered several legal provisions relevant to the application for extension of time to appeal:
- Section 95 of the Civil Procedure Act allows the court to enlarge periods for actions prescribed by the Act.
- Order 50 of the Civil Procedure Rules empowers the court to extend time for actions, even after the expiration of the time allowed.
- Section 79G of the Civil Procedure Act stipulates that appeals from subordinate courts must be filed within thirty days of the judgment.

Case Law:
The court referenced several cases to guide its discretion regarding the extension of time. Notably:
- Eliud Buku Thuku v. Beatrice Wambui Mwangi [2013] eKLR emphasized that the decision to extend time is discretionary and considers factors such as the length of delay, reasons for the delay, chances of success on appeal, and potential prejudice to the Respondent.
- Mutiso v. Mwangi [1997] KLR 630 outlined parameters for exercising discretion in extension applications.

Application:
The court analyzed the Applicant's explanation for the delay and noted that while the COVID-19 pandemic affected court operations, it did not completely halt them. The court found that the Applicant was aware of the judgment but only acted five months later to file the appeal. Despite this, the court deemed the delay not overly inordinate and recognized its discretion under Section 3A to ensure justice is served.

6. Conclusion:
The court granted the Applicant leave to appeal out of time, allowing him to file the appeal within 30 days from the date of the ruling. The court ordered that costs would be in the intended appeal. This decision underscores the court's commitment to ensuring access to justice, even amid challenges posed by extraordinary circumstances like the pandemic.

7. Dissent:
There were no dissenting opinions noted in this case.

8. Summary:
The High Court of Kenya at Kisumu ruled in favor of Brian Okuthe Odero, granting him leave to appeal out of time against the judgment delivered in favor of Aga Khan Hospital Kisumu. The court's decision reflects a balance between the need for timely justice and the realities of unforeseen delays, emphasizing that the judicial process should remain accessible even during challenging times.

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