Evans Mairura Omwenga v Daniel Chepkairor Chebet [2021] KECA 940 (KLR)
The bottom line
#Kenya's Court of Appeal refused to revive a six-year-delayed land appeal, warning that blaming your advocate alone will not excuse 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 had offered a reasonable and cogent explanation for the delay of about six years in filing the Notice and Record of Appeal
- 2.Whether an application under Rule 4 can circumvent a notice of appeal already deemed withdrawn under Rule 83 by a full bench of the Court
- 3.Whether blame placed on the applicant's advocate, without evidence of the party's own efforts, constitutes a plausible excuse for the delay
Key legal issues
#Whether the delay of about six years was satisfactorily explained
No - the nine-month delay after the proceedings were certified ready on 22 October 2019 was unexplained, and the letter bespeaking proceedings was never served on the respondent
The court acknowledged that preparation of proceedings took long, but the certificate of delay showed the proceedings were ready for collection from 22 October 2019 and were collected only on 22 July 2020. That nine-month gap was unexplained. Additionally, the letter bespeaking proceedings was never served as the Rules require, compounding the procedural failures.
Whether blaming one's advocate excuses the delay
No - the party must demonstrate what efforts it employed to follow its own matter over the years
The applicant's only explanation was that his advocate failed to attend court or file a replying affidavit. The court held that merely blaming an advocate, without demonstrating the party's own efforts to follow the matter, is not a plausible and excusable reason. If the advocate's default were the issue, the proper course was an application to reinstate the withdrawn notice of appeal, not a Rule 4 application to circumvent the withdrawal order.
The legal framework governing extension of time under Rule 4
The discretion is unfettered but guided by the Fakir Mohamed factors: length and reason for delay, chances of the appeal succeeding, prejudice to the respondent, and other relevant considerations
The court adopted the well-established Fakir Mohamed formulation, holding that since removal of the 'sufficient reason' stricture in 1985 the discretion is unfettered, with no limit to relevant factors - including the period of delay, reason for delay, chances of the appeal succeeding, degree of prejudice, effect on public administration, importance of compliance with time limits, and resources of the parties.
Legal principles established
#- An applicant under Rule 4 must offer a reasonable and cogent explanation for every period of delay, however short, before discretion to extend time can be exercised
- A notice of appeal deemed withdrawn by a full Bench under Rule 83 cannot be revived through a Rule 4 extension-of-time application
Court orders
#- 1.The application for extension of time is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court, Eldoret
- Case No. 256 of 2013
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Relief refused
#Extension of time to file a Notice and Record of Appeal out of time
Inordinate and unexplained delay of about six years, including nine months after proceedings were ready for collection; notice of appeal already deemed withdrawn under Rule 83 and cannot be revived by a Rule 4 application; blame on advocate without proof of the party's own efforts is not excusable
Costs
No order as to costs - 'the application is dismissed with no order as to costs'
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.
every delay, even of a few days must be explained by the applicant demonstrating a genuine reason that prevented him from filing the appeal within the time provided in the Rules
the applicant should have filed an application seeking to reinstate the notice of appeal but what he is seeking now is an order to circumvent the order withdrawing the appeal
I am not persuaded merely placing a blame on the applicant’s advocate without demonstrating what efforts the party employed to follow his own matter for so many years is a plausible and excusable reason for the delay of almost nine (9) months which is compounded by other procedural errors cited above
the application is dismissed with no order as to costs
Issues in the judgment
#The judgment states the ELC judgment was delivered on 5th November 2014 in the opening paragraph but on 8th November 2014 in paragraph 6
The respondent is never named in the judgment; it is referred to only as 'the respondent'
The notice of appeal is dated 12th November 2014 while the ELC judgment is described as delivered 5th/8th November 2014; the case number of the present motion is not expressly stated (only Eldoret CA No. 86 of 2017 is mentioned as the earlier ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evans Mairura Omwenga v Daniel Chepkairor Chebet [2021] KECA 940 (KLR)", Case Analysis (2021). Court of Appeal at Eldoret CA No. 86 of 2017 (application arising from ELC Case No. 256 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/940/eng@2021-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.