Othina v Othina
The bottom line
#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
#Executive summary
#Key legal issues
#Computation of time for instituting an appeal where proceedings are bespoken
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.
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.
Whether the delay was inordinate and excusable
A 20-month delay not properly explained is inordinate; the explanations of illness and covid-19 were thin on detail and unproven.
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.
Assessment of the merits of the intended appeal
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.
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 16th May 2021 seeking extension of time is dismissed
- 2.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.