Manase Onyimbi v Board of Management of Kenya Medical Research Institute & another [2009] KECA 403 (KLR)
The bottom line
#Kenya's Court of Appeal can extend time to appeal even after a long delay, especially when the delay stems from an advocate's failure or registry problems.
What this practically means
#Executive summary
#Key legal issues
#Exercise of the rule 4 discretion on extension of time
The discretion is unfettered but guided by the four Mutiso factors; on the facts the discretion was exercised in favour of the applicant.
The Court applied the settled factors: length of delay (32 days), reason for delay (advocate's failure to file the Record within 14 days as directed, followed by difficulties retrieving the file after discharging him and a delay in releasing documents from the registry), arginability of the appeal, and prejudice to the respondent. The applicant, acting in person, filed promptly after the striking out. Late service of the replying affidavit also weighed in his favour.
Effect of late service of the replying affidavit on alleged unexplained delay
The complaint of an unexplained 32-day delay was discounted because the replying affidavit was served on the applicant just before the hearing, depriving him of a chance to respond.
Counsel for the respondent admitted he had the applicant's postal address but did not use it, serving the affidavit in the court corridors on the hearing day. The Court held the applicant might have filed a supplementary affidavit had he been served in good time, so the assertion that the delay was unexplained could not stand against him.
Failure to annex a draft Memorandum of Appeal
Not fatal where the memorandum had been annexed to, and considered in, a prior application before Githinji, JA, on the same grounds.
The applicant explained that the draft memorandum was attached to the earlier application decided by Githinji, JA, and that the grounds remained the same. The Court noted Githinji, JA's findings that although the grounds were general, the appeal concerned loss of employment and concomitant benefits and raised some grounds, and did not treat the omission as disqualifying.
Legal principles established
#- In deciding whether to extend time for appealing the Court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
Court orders
#- 1.Extension of time granted to lodge and serve the Record of Appeal out of time
- 2.Record of Appeal to be filed and served within 14 days from the date of the ruling
- 3.Respondent awarded the costs of the application
- On appeal from
- High Court of Kenya at Kisumu
- Kisumu HCCC No. 154 of 2000
- Jurisdiction invoked
- Rules 4 and 42 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Manase Onyimbi v Board of Management of Kenya Medical Research Institute & another [2009] KECA 403 (KLR)", Case Analysis (2009). Civil Application (extension of time) arising from Kisumu HCCC No. 154 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/403/eng@2009-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.