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Court of AppealDismissedCivil Application No. NAI 228 of 1997 (KSM 32/97)· [1998] KECA 249 (KLR)

Charles Ombati Ontiri v Ebisiba Bosibori Angwenyi [1998] KECA 249 (KLR)

Court of Appeal of Kenya
24 March 1998
ROR.S.C. Omolo
390 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicant could not explain a nine-month delay, even though nobody opposed the application.

What this practically means

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Executive summary

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This was an application in chambers before Omolo, JA of the Court of Appeal at Kisumu seeking extension of time to file a Notice of Appeal against a ruling and order of the High Court at Kisii (Mbaluto, J) dated 19th July 1996 in H.C.C.C. No. 117 of 1992. Although the application was not opposed, the Judge held that non-opposition did not relieve him of the duty to examine whether the discretion to extend time should be exercised. He accepted the applicant's explanation that he only became aware of the ruling in November 1996, which excused the delay from July to November 1996. However, the motion was not filed until 7th August 1997, leaving an unexplained gap of some nine months. The supporting affidavit attributed the failure to file to reasons beyond the applicant's control, but the court found no such reasons for the later period, and counsel's answer that he had no instructions did not amount to an explanation. Holding that the applicant was obliged to account for the entire period of delay and that no explanation was forthcoming, the Judge declined to exercise his discretion in the applicant's favour. The motion was dismissed with no order as to costs, delivered at Kisumu on 24th March 1998. The decision underscores that applicants for extension of time must explain every segment of delay, and that an unopposed application must still merit the exercise of discretion on its own merits.

Key legal issues

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01

Whether the delay of approximately nine months between the applicant learning of the ruling and filing the motion was satisfactorily explained

Holding

The delay was not explained and the discretion to extend time was refused

Reasoning

The court accepted that the applicant did not learn of the ruling until November 1996, which excused the earlier period. However, from November 1996 to 7th August 1997 - some nine months - no explanation was given in the supporting affidavit; counsel's assertion of having no instructions was insufficient. The applicant's general claim of reasons beyond his control could not cover this period, so the motion failed.

p. 2

Legal principles established

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  • An unopposed application does not automatically succeed; the court must still independently consider whether to exercise its discretion in the applicant's favour.
  • An applicant for extension of time must explain every period of delay; where part of the delay is unexplained, the discretion will be refused.

Court orders

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  1. 1.The application for extension of time for filing Notice of Appeal is dismissed
  2. 2.No order as to costs
On appeal from
High Court of Kenya at Kisii
H.C.C.C. No. 117 of 1992
Jurisdiction invoked
Inherent discretion of a single Judge of the Court of Appeal in chambers to extend time for filing a Notice of Appeal under the appellate rules

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, "Charles Ombati Ontiri v Ebisiba Bosibori Angwenyi [1998] KECA 249 (KLR)", Case Analysis (1998). Civil Application No. NAI 228 of 1997 (KSM 32/97). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/249/eng@1998-03-24

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