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Court of AppealAllowedNotice of motion dated 7th January, 2009· [2009] KECA 361 (KLR)
Hezekiah Michoki v Elizaphan Onyancha Ombongi [2009] KECA 361 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#Kenya's Court of Appeal ruled that a short, honestly explained delay of fourteen days missed a court deadline can be excused, letting the appellant pursue his case.
What this practically means
#Executive summary
#This is a single-Judge ruling of the Court of Appeal at Kisumu delivered by R.S.C. Omolo, JA, on an application under Rule 4 of the Court's Rules seeking enlargement of the seven-day period prescribed by Rule 54(1)(b) for a party dissatisfied with a decision of a single Judge to write to the Registrar requesting that the decision be referred to the full Court. The underlying decision, made by Onyango Otieno, JA on 5th December 2008, had dismissed the applicant Hezekiah Michoki's notice of motion seeking enlargement of time to serve a notice of appeal and file a record of appeal out of time. Counsel holding the applicant's brief did not ask for an immediate reference, leaving only the written-request route, and the applicant missed the seven-day deadline. The court explained that Rule 54(1)(b) allows reference to the full Court either immediately at the time of the decision or by letter to the Registrar within seven days. Computing the delay, the court excluded the decision date under Rule 3(a) and the Christmas Vacation under Rule 3(e), leaving an effective delay of fourteen days. Finding the explanation extensive though not wholly correct but free of any attempt to cheat, the court held the delay was not inordinate and allowed the motion, directing the applicant to deliver the written request to the Registrar within seven days, with a copy served on the respondent, and to pay the respondent's costs assessed at Kshs.20,000/- within fourteen days, failing which execution could issue. The respondent, who did not contest the competency of the motion, thereby obtained a fresh opportunity to pursue a reference of the single Judge's decision to the full Court.
Key legal issues
#01
Whether the fourteen-day delay in writing to the Registrar under Rule 54(1)(b) was inordinate
Holding
The court extended time, holding the fourteen-day delay was not inordinate.
Reasoning
The delay ran from 5th December 2008 to 20th December 2008, but part fell within the Christmas Vacation which Rule 3(e) excludes from computation of time, and the decision date itself is excluded under Rule 3(a), leaving an effective delay of fourteen days. The explanation was extensive though not wholly correct, but there was no attempt to cheat or cover up anything. Given the brevity of the delay, the judge exercised his Rule 4 discretion in the applicant's favour.
p. 2
Legal principles established
#- A party dissatisfied with a single Judge's decision may have it referred to the full Court either by asking the Judge at the time of the decision or by writing to the Registrar within seven days.
- The Christmas Vacation period is excluded from computation of time under the Court's Rules unless the court otherwise directs.
- A short delay of about fourteen days, honestly explained, is not inordinate and does not preclude exercise of the Rule 4 discretion.
Court orders
#- 1.The notice of motion dated 7th January, 2009 and lodged on 8th January, 2009 is allowed
- 2.The applicant shall within seven days of the date of the order deliver the written request to the Registrar and at the same time serve a copy of that letter upon the respondent
- 3.The applicant shall pay the respondent the costs of the motion assessed at Kshs.20,000/-, payable within fourteen days, failing which the respondent may execute forthwith
- On appeal from
- Court of Appeal of Kenya (decision of a single Judge)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (reference to full Court under the proviso to section 5 of the Court of Appeal for East Africa Act and Rule 54(1)(b) of the Court's Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hezekiah Michoki v Elizaphan Onyancha Ombongi [2009] KECA 361 (KLR)", Case Analysis (2009). Notice of motion dated 7th January, 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/361/eng@2009-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.