Philemon Cheruiyot Kenduiywa v Hellen Chemeli Kenduiywa & 3 Others
The bottom line
#Kenya's Court of Appeal refused to revive an appeal filed four years late, ruling that blaming a former lawyer is not a valid excuse for unexplained delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the inordinate delay of over four years was satisfactorily explained
The delay was inordinate and unexplained; blaming former counsel was unsupported by evidence
The court found the delay of more than four years inordinate. The applicant attributed it to his former advocate's mistake and miscommunication, but had nothing beyond his word to confirm this. The respondents showed the succession matter had long been pending and further delay would prejudice them, particularly the elderly first respondent.
Whether Article 159(2)(d) obliged the court to overlook the procedural default
No; the applicant could not rely on Article 159(2)(d) while ignoring Article 159(2)(b) requiring justice without delay
The applicant invoked the court's duty to administer justice without undue regard to procedural technicalities. The court held this must be read with the principle that justice shall not be delayed, and in the circumstances allowing the extension would cause undue delay and be neither fair nor just.
Legal principles established
#- The power to extend time under Rule 4 of the Court of Appeal Rules is a discretionary power of the Court, exercised judicially and not limited to listed factors
- Article 159(2)(d) on procedural legality must be balanced against Article 159(2)(b) requiring justice without delay
Court orders
#- 1.The notice of motion dated 26th July 2017 is dismissed
- 2.No orders as to costs
- On appeal from
- High Court of Kenya at Kitale
- Kitale Succession Cause No. 85 of 2004
- Jurisdiction invoked
- Rule 4 and Rule 53 of the Court of Appeal Rules (single judge, in chambers)
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.
- Stephen K. Kiyen v Kenya Farmers Association [2019] KEELRC 2604 (KLR)[2019] KEELRC 2604 (KLR)14 Nov 2019
Cite this brief
#Cite this brief
Caselaw, "Philemon Cheruiyot Kenduiywa v Hellen Chemeli Kenduiywa & 3 Others", Case Analysis (2018). Civil Application No. 83 of 2017 (UR No. 54/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/889/eng@2018-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.