Kennedy Ochieng Otieno & another v Elisaphan Omolo Nyasita [2019] KECA 690 (KLR)
The bottom line
#Kenya's Court of Appeal extended an appeal deadline despite poor explanations, but made the lawyer personally pay the costs of the delay.
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 leave to extend time to file and serve the record of appeal out of time
- 2.Whether the explanation offered for the delay was sufficient and whether the delay was inordinate
Key legal issues
#Whether the delay of approximately two months in filing the application for extension of time, after collection of typed proceedings on 28th January, 2019, warranted dismissal of the application
The court found the delay not inordinate, accepted that the proceedings were ready and collected on 28th January, 2019, and exercised its discretion to extend time despite an unconvincing explanation for counsel's further delay, so as not to penalise the client for counsel's inadvertence.
The court accepted the date of certification of the typed proceedings (28th January, 2019) as establishing when the proceedings were ready, making the initial delay in lodging the record sufficient explained. The unexplained two-month gap before filing the application was attributed to counsel's inadvertence in relying on Registry staff advice rather than due diligence. Applying the principle that counsel's mistake should not be visited on the client, and noting the matter concerned land, the court extended time but imposed costs personally on counsel to mark the professional lapses.
Whether reliance by counsel on advice from Registry staff to file an application for extension of time was a sufficient explanation
No - it is not the duty of Registry staff to advise counsel on procedure; counsel conducting the client's case must exercise due diligence in discharging professional duties.
The applicant's only explanation for the two-month delay after collecting the typed proceedings was that Registry staff advised that an extension application be made. The court rejected this, holding that Registry staff bear no duty to advise counsel, and that the advocate with conduct of the matter must exercise due diligence. While this rendered the explanation unconvincing, the court balanced it against the non-inordinate length of the delay and the land subject matter, extending time but shifting costs personally onto counsel.
Legal principles established
#- Grant of leave to extend time is a discretionary exercise that must not be exercised whimsically, arbitrarily or capriciously, and an applicant must explain the delay, show it is not inordinate, and apply timeously.
- Mistake or inadvertence by counsel should generally not be visited upon the client, particularly in land matters; the court may nonetheless impose personal costs on inadvertent counsel.
Court orders
#- 1.Time extended to file the record of appeal
- 2.Applicant to file and serve the Record of Appeal within 14 days of the date of the ruling
- 3.Respondent's costs of the application to be paid personally by counsel for the applicant, assessed by consent at Kshs.10,000/=, to be paid before the Record of Appeal is filed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court
- Not stated in judgment
- Jurisdiction invoked
- Inherent/appellate discretion to extend time for filing and service of the record of appeal (leave application under the Court of Appeal procedural regime; specific rule not cited in the ruling)
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.
It is trite law that the grant of leave to extend time is at my discretion. I am reminded that in exercising my discretion, I must bear in mind the said discretion should not be exercised whimsically, arbitrarily or capriciously.
In an application for extension of time, an applicant must explain the reason for delay and the delay should not be inordinate. At the same time, the application for extension of time must be made timeously.
It is counsel as an advocate who has the conduct of client's case who should exercise due diligence in the discharge of his professional duty to a client.
Accordingly, I extend time to file the record of appeal. The applicant to file and serve the Record within 14 days of the date hereof.
As to costs, counsel for the applicant having been inadvertent, I hereby order the respondent's cost in this application be paid personally by counsel for the applicant.
Issues in the judgment
#The ruling does not state the names of the parties, the case number, the lower-court case number, or the procedural rule under which the extension application was brought, limiting identifiability of the matter.
The record contains an internal inconsistency on the collection of typed proceedings: counsel asserted they were collected on 28th January, 2019, but the respondent pointed to the absence of a certificate of delay or a collection letter, and the court noted no letter requesting proceedings was on record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kennedy Ochieng Otieno & another v Elisaphan Omolo Nyasita [2019] KECA 690 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/690/eng@2019-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.