Lucas Chagwony & 6 others v Stanley Chebiator [2019] KECA 196 (KLR)
The bottom line
#Even a four-day delay in filing a notice of appeal in Kenya will sink your appeal if you fail to explain why it happened.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted extension of time to lodge a Notice of Appeal out of the 14-day period allowed under the Rules
- 2.Whether the four-day delay was inordinate and whether it was explained to the satisfaction of the Court
Key legal issues
#Whether the four-day delay in filing the Notice of Appeal could justify extension of time under Rule 4
Dismissal. Though a four-day delay is not inordinate on its face, no reason or explanation was given in the Notice of Motion or supporting affidavit, so there was no basis to exercise the discretion.
The Court recognised its discretion under Rule 4 but held that the discretion is not exercised in a vacuum. The applicant must account for the delay to the Court's satisfaction. Neither the Notice of Motion nor the affidavit of the applicant's advocate explained the four days, so the application failed for want of an explanation rather than because the delay was inordinate.
Legal principles established
#- An applicant for extension of time must demonstrate the delay, show it is not inordinate, and explain the reason for the delay to the satisfaction of the Court; absent an explanation, the discretion under Rule 4 cannot be exercised.
- In the absence of an explanation or reason for delay, the Court has no factual or legal basis to exercise its discretion to extend time, even where the delay is short.
- Dismissal of an application for extension of time does not bar a party from making a similar application in future.
Court orders
#- 1.The Notice of Motion dated 4th September, 2019 is dismissed for lack of merit
- 2.Costs of the application awarded to the respondent
- 3.The applicant's request to take the matter out of the hearing list to file a further affidavit explaining the delay is refused
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- Eldoret HCA No. 43 of 1996
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretion to extend time)
Relief refused
#Application to take the matter out of the hearing list to enable a further affidavit explaining the reason for delay
No merit; the delay remained unexplained
Costs
I hereby award the costs of the instant application to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In an application for extension of time an applicant needs to satisfy the Court that there has been delay in filing the application; that the delay is not inordinate and reason for delay must be given.
In the absence of an explanation or reason for delay, I find that there is no factual or legal basis for me to exercise my discretion to extend time.
Accordingly, the Notice of Motion dated 4th September, 2019 be and is hereby dismissed for lack of merit.
In law, dismissal of an application, for extension of time does not bar a party from making a similar application in future.
Issues in the judgment
#The judgment does not name the actual parties; it identifies them only through their advocates, so the case title and party roles are reconstructed from the narrative rather than stated in the coram.
The record states the Notice of Appeal was filed on 28th January, 2019, which is 18 days after the 10th January 2019 judgment and 4 days beyond the 14-day period; this is consistent, but the supporting affidavit deposing the same four-day figure is repeated verbatim, leaving the exact timeline dependent on the Court's own arithmetic.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucas Chagwony & 6 others v Stanley Chebiator [2019] KECA 196 (KLR)", Case Analysis (2019). Notice of Motion dated 4th September, 2019 (arising from Eldoret HCA No. 43 of 1996). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/196/eng@2019-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.