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Court of AppealDismissedCivil Application 139 of 2021· [2022] KECA 592 (KLR)

Obarasa & 2 others v Etyang & 2 others

Court of Appeal
28 April 2022
FTF Tuiyott
671 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a land appeal filed nearly six years late, blaming the applicants for not following up their own case.

What this practically means

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Executive summary

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This was a single-judge ruling of the Court of Appeal at Kisumu (F. Tuiyott, JA) on a Notice of Motion dated 23rd July 2021 in which the applicants sought leave to file an appeal out of time against the judgment of Kaniaru, J. delivered on 28th September 2015 in Busia ELC No. 48 of 2015 (O.S). The applicants explained the delay through their advocate's failure to inform them of the judgment, their limited understanding of the law, and an assertion that the court file could not be traced so proceedings could not be supplied in time. The respondents filed no response. Applying Rule 4 of the Court of Appeal Rules and the principles in Fakir Mohamed v Joseph Mugambi, the judge held the discretion must be exercised judiciously, considering the length of delay, its explanation, prejudice to respondents and the viability of the intended appeal. The delay of 5 years and 9 months was found awfully long and inordinate. The explanation blaming the advocate was rejected: a party who shows disinterest in their litigation must share blame with their advocate and bear the consequences of inaction. The claim about the untraceable file failed for want of evidence. The application was dismissed with no order as to costs given the absence of a response.

Key legal issues

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01

Whether the delay of 5 years and 9 months was excusable

Holding

The delay was awfully long and inordinate; the explanation of advocate negligence and untraceable court file was insufficient

Reasoning

The court found the applicants indolent for failing to follow up their own case for such a long period. Blame placed on the advocate does not excuse the party, who must share in it. There was no evidence that the court file could not be traced or that the applicants followed up the matter.

p. 2
02

Whether the untraceable court file justified the delay

Holding

No, there was no evidence supporting the claim that the file could not be traced

Reasoning

The court found the assertion about the untraceable file unsupported by any evidence and noted the applicants did not demonstrate any follow-up efforts on their part.

Legal principles established

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  • The discretion to extend time under Rule 4 is exercised judiciously, considering the length of delay, explanation for delay, prejudice to the respondent and viability of the intended appeal
  • A litigant who fails to follow up on their own case shares blame for their advocate's failure and must bear the consequences of inaction

Court orders

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  1. 1.The Notice of Motion dated 23rd July 2021 seeking extension of time to file an appeal out of time is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (1)

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

    Factors guiding the discretionary power to extend time under Rule 4

On appeal from
Environment and Land Court (ELC) at Busia
Busia ELC No. 48 of 2015 (O.S)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (power to extend time)

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, "Obarasa & 2 others v Etyang & 2 others", Case Analysis (2022). Civil Application 139 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/592/eng@2022-04-28

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