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Court of AppealDismissedMiscellaneous Application E155 of 2021· [2022] KECA 474 (KLR)

Othina v Othina

Court of Appeal
11 March 2022
1,059 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 excuse a 20-month appeal delay because the applicant offered no proof for his explanations or his procedural compliance.

What this practically means

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Executive summary

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This is a single-Judge ruling of the Court of Appeal at Kisumu by Tuiyott, JA, on a notice of motion dated 16th May 2021 by Edward Ouma Othina seeking extension of time to file and serve a record of appeal from the judgment of Ong'ondo, J, delivered on 26th June 2019 in Migori ELC Case No. 310 of 2018, in which the respondent was granted a permanent injunction over land parcel Kawere/Konyanya/Kaveding/1429 with costs. The applicant filed a notice of appeal timeously on 9th July 2019 but had not filed the record of appeal some 20 months later. He attributed the delay to illness, to proceedings only being ready for collection on 21st December 2020, and to the covid-19 pandemic's effect on his ability to raise fees. The court applied Rule 4 and the Fakir Mohammed guidelines. It held that the applicant gave no evidence of having bespoken the proceedings in writing within 30 days as required by Rule 82(1) and (2), so the time for preparation of proceedings was not excluded and the delay was 20 months. The explanations of illness and pandemic hardship were unproven and thin on detail, making the delay inordinate and unexcused. The court was also unable to assess the merits of the intended appeal, as no draft memorandum, proceedings or judgment were exhibited. The motion was dismissed with no order as to costs, the respondent not having participated in the single Judge proceedings.

Key legal issues

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01

Computation of time for instituting an appeal where proceedings are bespoken

Holding

The applicant did not prove he applied in writing for typed proceedings within 30 days, so the time for preparation of proceedings was not excluded and the delay stood at 20 months.

Reasoning

Rule 82(1) gives 60 days to institute an appeal by lodging the memorandum and record of appeal, paying fees and security. The proviso and Rule 82(2) exclude the time for preparation of proceedings only where the applicant applied in writing for a copy of the proceedings within 30 days and served the copy on the respondent. The applicant asserted the proceedings were ready on 21st December 2020 but gave no evidence of bespeaking them in writing or of the letter, so the court presumed non-compliance.

p. 2
02

Whether the delay was inordinate and excusable

Holding

A 20-month delay not properly explained is inordinate; the explanations of illness and covid-19 were thin on detail and unproven.

Reasoning

The applicant gave no details or proof of the illness said to have prevented him instructing advocates, and did not elaborate how the pandemic affected his ability to raise advocate and filing fees. The affidavit was generally thin on detail. The court therefore could not accept the explanation and found the delay inordinate.

p. 2
03

Assessment of the merits of the intended appeal

Holding

The court could not assess the viability of the intended appeal because no arguments, draft memorandum, proceedings or copy of judgment were placed before it.

Reasoning

Although the applicant asserted the intended appeal was highly merited with high chances of success, no arguments were advanced to support that assertion, and no draft memorandum of appeal, proceedings or copy of the judgment was exhibited, leaving the court handicapped in evaluating the chances of success.

p. 2

Legal principles established

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  • An applicant for extension of time must back up the essentials of the application with sufficient material; mere uncontroverted assertion is not enough, and failure to prove bespeaking of proceedings means time is not excluded under Rule 82.
  • Extension of time under Rule 4 is a discretionary power exercised judiciously, guided by the length of delay, reason for delay, prejudice to the respondent, and possibly the chances of success of the intended appeal.

Court orders

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  1. 1.The notice of motion dated 16th May 2021 seeking extension of time is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure Actvarious
  • Civil Procedure Rulesvarious
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 82(1)
  • Court of Appeal RulesRule 82(2)

Cases cited (1)

  • Fakir Mohammed vs Joseph Mugambi & 2 others
    [2005] eKLR

    Guiding factors for exercise of discretion under Rule 4: length of delay, reason for delay, prejudice, and chances of success

On appeal from
Environment and Land Court, Migori
ELC Case No. 310 of 2018
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time jurisdiction)

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, "Othina v Othina", Case Analysis (2022). Miscellaneous Application E155 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/474/eng@2022-03-11

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