Ojwang v Ghelani & 5 others
The bottom line
#Kenya's Court of Appeal gave a landowner more time to appeal, ruling a 62-day delay caused by his advocate's death was excusable.
What this practically means
#Executive summary
#Key legal issues
#Service of notice of appeal on persons affected
The applicant conceded non-compliance with rule 77(1) (formerly rule 75), attributable to the illness and death of his former advocate
Rule 77(1) requires an intended appellant to serve the notice of appeal on all persons directly affected within seven days of lodging it. The applicant conceded breach, explaining it by the sickness and demise of advocate Mr. Kimanga and confusion in the firm he left behind. The court accepted this as a plausible explanation in the exercise of its discretion to extend time.
Institution of appeal within sixty days under rule 82 (now rule 84)
The proviso excluding time for preparation of proceedings was unavailable because the bespeaking letter was not served on respondents; the appeal ought to have been instituted by March 14, 2022
Because the letter bespeaking certified proceedings was not served on the respondents, the applicant could not rely on the proviso to rule 82(1). The appeal therefore had to be instituted within sixty days of lodging the notice of appeal, reckoned excluding the Christmas recess, i.e. by March 14, 2022. The resulting delay of about 62 days was held not inordinate.
Considerations for extension of time
Delay of about 62 days is not inordinate; the reason (advocate's illness and death) is plausible; no prejudice demonstrated by respondents
The court applied the established considerations guiding extension of time: length of delay, reason for delay, and prejudice. The delay was modest, the explanation was the illness and eventual death of the applicant's advocate and understandable inaction by the firm, and the respondents, by failing to respond, did not demonstrate any prejudice if the application were granted.
Legal principles established
#- Extension of time is governed by an unfettered judicial discretion exercised with reference to length of delay, reason for delay, and prejudice to respondents
- A delay of about 62 days, with a plausible explanation and no demonstrated prejudice, is not inordinate
Court orders
#- 1.The application of May 16, 2022 is allowed
- 2.The applicant is granted seven (7) days to serve the notice of appeal filed on December 20, 2021
- 3.The applicant is granted fourteen (14) days from the date of service thereof to file and serve the record of appeal
- 4.Costs of the application shall be in the appeal
- On appeal from
- Environment & Land Court of Kenya at Kisumu
- Kisumu HC ELC Case No. 232 of 2013
- Jurisdiction invoked
- Rule 77 (formerly rule 75) and rule 84 (formerly rule 82) of the Court of Appeal Rules, 2022 - inherent discretion to extend time
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ojwang v Ghelani & 5 others", Case Analysis (2022). Civil Application E069 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1096/eng@2022-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.