Gabriel Osimbo v Chrispinus Mandare [2015] KECA 440 (KLR)
The bottom line
#The Court of Appeal let a Busia man appeal 14 days late because illness caused the delay and his case raised a question worth hearing.
What this practically means
#Executive summary
#Key legal issues
#Change of advocates - formal requirements
There is no requirement that a notice of change of advocates be annexed to a supporting affidavit; with an appropriate consent executed and filed, counsel is properly on record.
The notice of change of advocates was filed on 2nd April 2015 and served the same day. Counsel for the respondent only complained that it had not been annexed to the replying affidavit. The court held it was aware of no such formal requirement, noting that a consent between the former and current advocates had been executed and filed, so the notice of appeal was filed by counsel properly on record.
Extension of time - discretion under rule 4
A 14-day delay with a satisfactory explanation of illness, an arguable intended appeal and no demonstrated prejudice warrants extension of time in the interests of justice.
The court applied the established factors: length of delay, reasons, arguability and prejudice. The 14-day delay was not inordinate; uncontroverted hospitalization evidence from 16th to 20th March 2015 and continuing weakness explained the delay. The intended appeal on whether order 50 rule 4 applies to appeals from subordinate courts to the High Court was found arguable, and any prejudice was compensable by costs.
Meaning of an arguable appeal
An arguable appeal is not one that must succeed, but one deserving of the Court's consideration.
Relying on the Court's prior decision in Dennis Mogambi Mong'are v Attorney General & 3 Others, the single judge found that the question whether order 50 rule 4 of the Civil Procedure Rules applies to computation of time for filing appeals from subordinate courts to the High Court was a substantive question worthy of consideration, without pre-empting the appeal.
Legal principles established
#- In an extension-of-time application under rule 4, the Court's primary concern is doing justice to the parties, considering length of delay, reasons for delay, arguability and prejudice
- An arguable appeal need not necessarily succeed; it suffices that it deserves the Court's consideration
- Prejudice to a respondent that can be compensated by costs does not defeat an otherwise merited extension of time
Court orders
#- 1.The preliminary objection regarding appearance by Mr. Moses Orengo for the applicant is rejected
- 2.The applicant's application dated 13th April 2013 (for extension of time) is allowed
- 3.The notice of appeal on record is deemed as duly filed and served in time
- 4.The applicant shall bear the costs of the application
- On appeal from
- High Court of Kenya at Busia
- Busia H.C.C.A No. 3 of 2011
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Peter O. Ngoge & Associates Advocates v Coffee Board of Kenya & 2 others[2017] KESC 46 (KLR)26 Jan 2017followed
Cite this brief
#Cite this brief
Caselaw, "Gabriel Osimbo v Chrispinus Mandare [2015] KECA 440 (KLR)", Case Analysis (2015). Civil Application No. 12 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/440/eng@2015-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.