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Court of AppealDismissedNot stated in the judgment· [2021] KECA 445 (KLR)

Martin Maurice Odhiambo v Joel Kipsang A. Ng’eno & 5 others [2021] KECA 445 (KLR)

Court of Appeal
9 July 2021
1,046 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to give a self-represented litigant more time to appeal because he waited over three years without a good explanation.

What this practically means

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Executive summary

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Martin M. Odhiambo, acting in person, moved the Court of Appeal under Rule 4 of the Court of Appeal Rules seeking extension of time to file a notice of appeal and record of appeal out of time. There was ambiguity on the face of the motion, which referenced a High Court ruling of 28th June 2019, whereas the supporting affidavit and draft memorandum showed the intended appeal was against a ruling delivered on 11th May 2018. The court clarified that as a notice of appeal against the 28th June 2019 ruling was filed in time on 1st July 2019, the application could only concern the record of appeal in respect of that ruling; as regards the 11th May 2018 ruling, no notice of appeal had been filed, so extension would have to cover both the notice and the record. The court further held that the 28th June 2019 ruling, which dismissed the applicant's application for stay of execution and extension of time in the High Court, was inconsequential before it, since the Court of Appeal retains power to extend time for appealing the underlying judgment. Applying the principles in the Supreme Court decision of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (2014) eKLR, the court found that more than three years had elapsed since the judgment, that the applicant had wasted time pursuing a review which he later withdrew, and that he had not acted with speed thereafter. Holding that it is unfair to keep a successful litigant from the fruits of judgment due to an unsuccessful litigant's delay, the court dismissed the application and made no order as to costs.

Key legal issues

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01

Whether the in-person status of an applicant excuses delay in pursuing an appeal

Holding

No; acting in person does not excuse laxity in pursuing an appeal, and inordinate delay disentitles an applicant from the discretionary relief of extension of time

Reasoning

The court applied the Salat factors: extension of time is an equitable remedy for a deserving party, and the applicant bears the burden of explaining the delay. The applicant wasted time pursuing a review instead of an appeal, and even after withdrawing the review application on 20th November 2018 did not act with speed. Over three years had elapsed since the judgment of 11th May 2018, and the interests of the successful litigant in enjoying the fruits of the judgment weighed against extension.

p. 2

Legal principles established

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  • The discretion to extend time under Rule 4 must be exercised judicially in accordance with the factors set out in the Supreme Court decision of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others

Court orders

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  1. 1.Dismissal of the notice of motion dated 8th July, 2019
  2. 2.No orders as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (1)

  • Nicholas Kiptoo Arap Korir Salat vs I.E.B.C. & 7 Others
    (2014) eKLR
On appeal from
High Court
Not stated
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Martin Maurice Odhiambo v Joel Kipsang A. Ng’eno & 5 others [2021] KECA 445 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/445/eng@2021-07-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.