Donald O. Raballa v Judicial Service Commission & Attorney General (Civil Application 10 of 2015) [2015] KECA 796 (KLR)
The bottom line
#The Court of Appeal refused to extend time for filing an appeal because the lawyer-turned-litigant could not explain months of unexplained delays, even though the appeal itself was arguable.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the extension-of-time application was inordinate and sufficiently explained
Although the court declined to find the delay inordinate given the unchallenged Certificate of Delay, the delays attributable to the applicant and his new advocates were not sufficiently explained, so extension of time was refused.
The court applied the settled LEO Sila Mutiso principles. While it restrained itself from finding the delay inordinate because of an unchallenged Certificate of Delay, it identified unexplained gaps: 60 days before paying for proceedings, 15 days in collecting them, and 52 days plus a further 23 days of inaction by the new advocates. As a former Resident Magistrate, the applicant knew the statutory timelines. Unexplained failure to comply disentitled him from invoking Article 159(2)(d).
Whether the intended appeal was arguable
The intended appeal was arguable and not frivolous, but this factor alone did not warrant extension of time.
The court considered the third Mutiso factor, the chances of the appeal succeeding. From the draft memorandum of appeal, the intended appeal was found arguable. However, because the reasons for the delay were insufficiently explained, the arguability of the appeal could not save the application. The court clarified the threshold: an arguable appeal is one raising reasonable arguments warranting consideration, not one that must necessarily succeed.
Legal principles established
#- A single judge's discretion under rule 4 of the Court of Appeal Rules to extend time must be exercised judiciously and not capriciously, having regard to the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- An applicant seeking extension of time must sufficiently explain the failure to meet statutory timelines before invoking Article 159(2)(d) of the Constitution.
- An arguable appeal need not be one that must succeed; it is one raising reasonable arguments warranting consideration.
Court orders
#- 1.The application dated 22nd December, 2014 seeking extension of time to file and serve a notice of appeal and record of appeal was dismissed
- 2.The applicant shall bear the costs of the application
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution; sections 3A and 3B of the Appellate Jurisdiction Act; rules 4 and 87 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Donald O. Raballa v Judicial Service Commission & Attorney General (Civil Application 10 of 2015) [2015] KECA 796 (KLR)", Case Analysis (2015). Civil Application No. NAI 251 of 1997 (application dated 22nd December, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/796/eng@2015-04-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.