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Court of AppealAllowedCivil Application E032 of 2020· [2022] KECA 866 (KLR)

Oburon (Being the Administratrix of the Estate of Obarasa Matiengi) v Omuse

Court of Appeal
22 July 2022
511 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a late appeal where the 43-day delay was explained and the other side suffered no prejudice.

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 an unopposed application dated 22nd February 2022 under Rule 4 of the Court of Appeal Rules, seeking an extension of time to file a Notice of Appeal against the judgment and decree of Omollo, J delivered on 2nd December 2021 in Busia Environment & Land Court Case No. 48 of 2019. The applicant, the administratrix of the estate of Obarasa Matiengi, attributed the delay to a misunderstanding between her and her previous advocates, M/S Calistus & Company Advocates. The court restated the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi: extension of time is discretionary and turns on the length of the delay, the reasons for it, the chances of the appeal succeeding, and the prejudice to the respondent. The judge found a delay of approximately 43 days (excluding the Christmas vacation) to be inordinate in neither length nor explanation, and noted that no prejudice to the respondent was demonstrated. The application was allowed, with time enlarged for the filing and service of the Notice of Appeal within 14 days and the institution and service of the appeal within 60 days; costs were made costs in the appeal. The ruling is short and turns on established law; it does not disturb the ELC decision, which remains subject to the intended appeal.

Key legal issues

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01

Whether a delay of about 43 days (excluding the Christmas vacation) in filing a Notice of Appeal was excusable

Holding

Yes; the delay was not inordinate, the reason (a misunderstanding with previous advocates) was considered, and no prejudice to the respondent was demonstrated.

Reasoning

The judge applied the settled Leo Sila Mutiso factors: length of delay, reasons for delay, chances of the appeal succeeding, and prejudice to the respondent. A delay of about 43 days excluding the Christmas vacation was not inordinate, the misunderstanding with previous advocates was an acceptable explanation, and the respondent did not demonstrate prejudice, so the discretion was exercised in the applicant's favour.

p. 2

Legal principles established

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  • Extension of time is discretionary, assessed on the length of and reasons for the delay, the arguability of the intended appeal and prejudice to the respondent.

Court orders

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  1. 1.Extension of time granted for filing the Notice of Appeal out of time
  2. 2.Applicant to file and serve the Notice of Appeal within fourteen (14) days of the ruling
  3. 3.Applicant to institute and serve the appeal within sixty (60) days
  4. 4.Costs shall be in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (1)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. Nai 251 of 1997

    Settled principles governing extension of time applications

On appeal from
Environment & Land Court, Busia
Busia Environment & Land Court Case No. 48 of 2019
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of 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, "Oburon (Being the Administratrix of the Estate of Obarasa Matiengi) v Omuse", Case Analysis (2022). Civil Application E032 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/866/eng@2022-07-22

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