Omondi v Okoyo

Rule 5(2)(b) presupposes a valid Notice of Appeal on record, which did not exist because the Notice was never filed in time. Rule 29 governs the court's power on an appeal to re-appraise evidence or take additional evidence, which was not in issue in an extension application. The application therefore fell to be determined solely under Rule 4.

The applicant's affidavit stated he was aware 'once judgment was delivered' yet also claimed he only learnt of the judgment when served with an eviction order. He did not state when or how he was served, nor annex the order. The court found the averments lacked candour and did not justify exercising the Rule 4 discretion in his favour.

The intended appeal was a second appeal from a Magistrate's Court via the ELC, so the Court of Appeal's jurisdiction would be confined to matters of law. The sole ground - that the trial court erred in finding no fraud - would require examining matters of fact, making success on appeal doubtful. The applicant also failed to annex the decision appealed against.

The matter was a second appeal from a 2019 ELC appeal, meaning the respondent had awaited finalisation for at least two years. Although the length of the earlier Magistrate's Court proceedings was unknown, the further delay occasioned by granting the extension could not be other than prejudicial to the respondent.