BOOKER ONYANGO & 2 others v ELDORET WATER SANITATION CO. LTD [2009] KECA 182 (KLR)
The bottom line
#The Court of Appeal refused to extend time to appeal because the applicants explained neither their 112-day delay nor the grounds of their intended appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeals were arguable
The applicants did not demonstrate arguability because they annexed no draft memorandum of appeal and did not enumerate the grounds of appeal in the supporting affidavit.
The court required tangible evidence of the grounds of the intended appeal before exercising its discretion. The applicants provided neither a draft memorandum of appeal nor grounds in the affidavit. Without knowing the grounds, the court could not be satisfied that the appeals were arguable and not frivolous, so the first Wasike v Swala condition failed.
Whether the delay was inordinate and excusable
The initial 4-day delay was excusable, but the subsequent 112-day delay from 29th/30th April 2008 to 30th July 2008 was inordinate and unexplained.
The court distinguished the initial short delay, occasioned by a defective Notice of Appeal filed without leave which was promptly rectified, from the later unexplained gap of 112 days before moving to court. Counsel for the applicants could not explain this second delay either orally or by affidavit, and the delay could amount to prejudice to the respondent, so the discretion could not be exercised in the applicants' favour.
Legal principles established
#- Before the Court exercises its discretion to extend time to file a Notice of Appeal, the applicant must demonstrate merit in the intended appeal, absence of undue prejudice to the respondent, and that the delay is not inordinate.
Court orders
#- 1.Dismissal of the Notice of Motion dated 30th July, 2008 seeking extension of time to file a Notice of Appeal
- 2.Costs of the application to the respondent
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rules 4, 76 & 81 of the Court of Appeal Rules (extension of time to file Notice of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BOOKER ONYANGO & 2 others v ELDORET WATER SANITATION CO. LTD [2009] KECA 182 (KLR)", Case Analysis (2009). Notice of Motion dated 30th July, 2008 (Court of Appeal, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/182/eng@2009-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.