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Court of AppealDismissedCivil Application No. 75 of 2020

Willis Oneko Opiata v Fredrick Omondi Wera [2021] KECA 949 (KLR)

Court of Appeal of Kenya
19 February 2021
2,622 words in judgment
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The bottom line

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The Court of Appeal dismissed a request for more time to appeal because the one-and-a-half-year delay was never properly explained, even though the appeal had merit.

What this practically means

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Executive summary

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This is a single-judge (in chambers) ruling of the Court of Appeal at Kisumu by Nambuye, JA, on a Notice of Motion dated 8th July 2020 seeking extension of time to lodge an appeal against a High Court judgment of Cherere, J dated 29th November 2018 in Kisumu H.C Succession Cause No. 1021 of 2014, a succession dispute over land parcel Siaya/Mahaya A3358. The applicant invoked Rules 4 and 5(2)(b) of the Court of Appeal Rules. The court struck out Rule 5(2)(b) as cited out of context and confined itself to Rule 4. It restated the crystallised principles governing extension of time, drawing on Leo Sila Mutiso, Edith Gichugu Koine, the Supreme Court's decision in Nicholas Kiptoo Arap Korir Salat, George Mwende Muthoni and Aviation Cargo Support. The delay was computed at one year, six months and ten days. The applicant attributed it to financial constraints, prolonged sickness aggravated by the Covid-19 pandemic, and delay in obtaining certified proceedings, but gave no details or proof, failed to explain why no notice of appeal was filed and served within the Rule 75 and 77 timelines, did not explain the roughly seven months after receipt of certified proceedings, and did not disclose two unsuccessful applications for similar relief in the trial court. Although the nineteen proposed grounds of appeal were found arguable, that single factor could not sustain the application. The application was dismissed with costs to the respondent. This is an interlocutory discretionary ruling by one judge, not a full panel judgment, and creates no appeal decision on the merits.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether Rule 5(2)(b) of the Court of Appeal Rules is applicable to an application of this nature
  2. 2.Whether the applicant has offered a plausible and satisfactory explanation for the delay of one year, six months and ten days
  3. 3.Whether the intended appeal is arguable
  4. 4.What prejudice, if any, the respondent would suffer if the extension were granted
  5. 5.Whether, on the totality of the Rule 4 factors, the extension of time should be granted

Key legal issues

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01

Whether the applicant's explanation for the delay was plausible and satisfactorily explained

Holding

The explanations (financial constraints, sickness, delayed certified proceedings, non-disclosure of two failed attempts in the trial court) were unsubstantiated; the prerequisite of satisfactory explanation was not satisfied.

Reasoning

The applicant did not say when he applied for or received certified copies of proceedings; the respondent's assertion that these were supplied in December 2019 was unrebutted, leaving about seven months unexplained. Financial constraints and sickness were given without details or proof, and no reason was given why the appellate process was not initiated in person. The applicant also failed to disclose his two unsuccessful applications to the trial court for similar relief.

p. 3
02

Whether the intended appeal was arguable

Holding

The nineteen proposed grounds of appeal were arguable, as they warranted the respondent's response and the Court's interrogation, though arguability alone did not entitle the applicant to the relief.

Reasoning

Applying the crystallised case-law threshold that an arguable appeal need not be one that must succeed but one warranting full argument, the single judge found that the grounds attacking the trial court's findings on the respondent's beneficial claim, the chief's letter, and the grant obtained by concealment would all warrant response and interrogation. However, this factor had to be considered together with the other Rule 4 factors, which the applicant failed to establish.

p. 3
03

Applicability of Rule 5(2)(b) to an extension of time application

Holding

Rule 5(2)(b) was cited out of context and struck out; only Rule 4 governs the application.

Reasoning

Rule 5(2)(b) concerns applications for orders in the nature of injunctions or stays pending appeal, not extension of time to lodge an appeal. The judge struck the citation out and confined consideration to Rule 4, which empowers the Court to extend time limited by the Rules for doing any act, on such terms as it thinks just.

p. 1

Legal principles established

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  • Rule 5(2)(b) of the Court of Appeal Rules has no application to an application for extension of time to file an appeal; only Rule 4 falls for consideration.
  • The discretion under Rule 4 is unfettered and does not require establishment of 'sufficient reasons'; no minimum or maximum period of delay is prescribed, but any delay must be satisfactorily explained.
  • A plausible and satisfactory explanation for delay is the key that unlocks the court's discretionary power under Rule 4.
  • An arguable appeal need not be one that must succeed, but one that warrants the opposite party's response and the Court's interrogation; however, arguability alone does not guarantee the relief.

Court orders

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  1. 1.Rule 5(2)(b) struck out as cited out of context
  2. 2.The application for extension of time dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya
Kisumu H.C Succession Cause No. 1021 of 2014
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time), invoked by Notice of Motion dated 8th July 2020

Relief refused

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Extension of time to lodge an appeal against the High Court judgment of 29th November 2018

The applicant satisfied only one Rule 4 factor (arguability); the explanations for the delay of one year, six months and ten days were unsubstantiated and not plausible

p. 3

Costs

The application is dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Rule 5(2)(b) has been cited out of context as it does not fall for consideration in an application of this nature. It is accordingly struck out. What falls for consideration herein is only Rule 4 of the Courts Rules.
p. 1Applicable rule for extension of time
A plausible and satisfactory explanation for a delay is the key that unlocks the court’s flow of discretionary power.
p. 2Satisfactory explanation for delay
an arguable appeal is not one that must necessarily succeed but is one which ought to be argued fully before court
p. 2Standard of arguability
since the applicant has only succeeded on establishing one factor namely, that the intended appeal is arguable, the application is not sustainable. It is accordingly dismissed with costs to the respondent.
p. 3Final orders - dismissal

Issues in the judgment

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minor

The judgment states the High Court judgment was delivered on 28th November, 2018 in the body, while the heading says dated 29th November 2018.

minor

The judgment states the application was filed on 8th June, 2020 when computing the period of delay, whereas the Notice of Motion is dated 8th July, 2020.

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, "Willis Oneko Opiata v Fredrick Omondi Wera [2021] KECA 949 (KLR)", Case Analysis (2021). Civil Application No. 75 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/949/eng@2021-02-19

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