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Court of AppealDismissedCivil Application (not stated in full)

Dismas Otany Otany v John Osonga Mimbi [2013] KECA 40 (KLR)

Court of Appeal of Kenya
20 December 2013
FAF. Azangalala
732 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to excuse a 211-day delay in filing an appeal because the applicant could not explain it or show the appeal had merit.

What this practically means

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Executive summary

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This was a single-judge application to the Court of Appeal at Kisumu under rule 4 of the Court of Appeal Rules, seeking extension of time to file and serve a Notice of Appeal out of time against a High Court judgment delivered by Ali-Aroni J on 8th December 2011. The applicant, Dismas Otany Otany, blamed his advocate on record for failing to notify him of the judgment, asserted that the appeal had high chances of success, and contended that the respondent would suffer no prejudice. The court reiterated that although the rule 4 discretion is unfettered, it must be exercised judicially upon reasons, and applied the familiar fourfold test from Leo Sila Mutiso v Rose Hellen Wangari Mwangi: the length of the delay, the reason for it, the arguability of the intended appeal, and prejudice to the respondent. The court found the delay was about 235 days, reduced to roughly 211 days after deducting the Christmas vacation, and that it had not been satisfactorily explained: the applicant did not identify the advocate, did not state when he learned of the judgment, and no affidavit from the advocate was filed. The applicant also failed to demonstrate that the intended appeal was arguable. Although the application was unopposed, the court held that this did not entitle the applicant to the indulgence of the discretion, and dismissed the application with no order as to costs.

Key legal issues

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01

Whether extension of time should be granted under rule 4 of the Court of Appeal Rules

Holding

Extension refused: the delay of about 211 days was unexplained and the intended appeal was not arguable.

Reasoning

The discretion under rule 4 is unfettered but must be exercised judicially upon reasons. The court applies the factors in Leo Sila Mutiso v Rose Hellen Wangari Mwangi: length of delay, reason for delay, arguability of the appeal, and prejudice to the respondent. The applicant blamed an unnamed advocate without affidavit evidence, did not say when he learned of the judgment, and could not show arguability despite exhibiting the High Court judgment. The unopposed nature of the application did not compel the court to grant it.

p. 2

Legal principles established

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  • In an application for extension of time under rule 4, 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; the discretion must be exercised judicially upon reasons.

Court orders

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  1. 1.The application dated 16th July 2013 seeking extension of time to file and serve Notice of Appeal out of time is dismissed
  2. 2.No order as to costs
On appeal from
High Court of Kenya
not stated
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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, "Dismas Otany Otany v John Osonga Mimbi [2013] KECA 40 (KLR)", Case Analysis (2013). Civil Application (not stated in full). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/40/eng@2013-12-20

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