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Court of AppealDismissedCivil Application E024 of 2022· [2022] KECA 1120 (KLR)

Omboya v Zum Zum Investments Limited & 3 others

Court of Appeal
21 October 2022
JLJW Lesiit
1,322 words in judgment
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The bottom line

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The Court of Appeal dismissed a request for more time to appeal because the applicant's illness excuse wasn't backed by credible medical evidence.

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 Mombasa (Lesiit, JA) on a Notice of Motion dated 12th April 2022 brought under Rule 4 of the Court of Appeal Rules, seeking extension of time to file and serve a notice of appeal out of time against a ruling of the Environment and Land Court at Mombasa (Matheka, J) delivered on 26th October 2021 in ELC Case No. 230 of 2013, which allowed the 4th respondent's application to be enjoined in the applicant's suit for specific performance of a contract for the sale of land. The applicant attributed the delay of 170 days to illness from November 2021, annexing medical notes and relying on George Kiptabut Lelei v Fanikiwa Limited for the proposition that sickness justifies extension. The 3rd and 4th respondents opposed. The court restated the settled Rule 4 principles from Leo Sila Mutiso v Rose Hellen Wangari Mwangi - length of delay, reasons for delay, chances of success and prejudice to the respondent - and reiterated from Habo Agencies Limited v Wilfred Odhiambo Musingo that an applicant must place material before the court justifying the exercise of discretion. On scrutiny, the medical notes were largely undated or obscured, and the dated documents showed normal test results rather than incapacitation or hospitalisation. The court found the reason for delay neither plausible nor reasonable and the application an afterthought, dismissed the motion, and awarded costs to the 3rd and 4th respondents who participated in the application.

Key legal issues

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01

Whether the reason given for the delay was plausible and reasonable

Holding

The reason was not reasonable; the medical notes did not support the alleged illness and the application was an afterthought

Reasoning

The applicant claimed illness from November 2021 prevented him from instructing his advocates. The court scrutinised the annexed medical notes and found most undated or obscured, and the dated ones showed normal test results rather than incapacitation or hospitalisation. The 170-day delay was therefore unexplained and the excuse implausible.

p. 3
02

The principles governing the exercise of discretion under Rule 4

Holding

The court has wide unfettered discretion but must exercise it judiciously applying the Mutiso principles: length of delay, reasons for delay, chances of success and prejudice to the respondent

Reasoning

The court restated the settled Rule 4 framework from Leo Sila Mutiso v Rose Hellen Wangari Mwangi, reinforced by Fakir Mohammed v Joseph Mugambi and Muringa Company Ltd. The discretion is wide but must be exercised judiciously, and the applicant bears the burden of placing material before the court justifying its exercise.

p. 2

Legal principles established

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  • The principles for extension of time under Rule 4 are settled: length of delay, reason for delay, chances of the appeal succeeding, and degree of prejudice to the respondent
  • A party seeking extension of time must place before the court material justifying the exercise of discretion in its favour

Court orders

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  1. 1.The Notice of Motion dated 12th April 2022 seeking extension of time to file and serve a notice of appeal is dismissed
  2. 2.Costs of the application awarded to the 3rd and 4th respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (5)

  • George Kiptabut Lelei v. Fanikiwa Limited
    Civil Application No. 84 of 2019

    Sickness as a sufficient ground for extension of time to file and serve a notice of appeal

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

    Settled principles for extension of time: length of delay, reasons, chances of success, prejudice

  • Fakir Mohammed vs Joseph Mugambi & 2 Other
    [2005] eKLR

    Factors for exercise of discretion under Rule 4

  • Muringa Company Ltd vs. Archdiocese of Nairobi Registered Trustees
    Civil Application No. 190 of 2019

    Factors for exercise of discretion under Rule 4

  • Habo Agencies Limited v Wilfred Odhiambo Musingo
    [2020] eKLR

    Party must place material before the court to justify exercise of discretion in its favour

On appeal from
Environment and Land Court at Mombasa
ELC Case No. 230 of 2013
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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, "Omboya v Zum Zum Investments Limited & 3 others", Case Analysis (2022). Civil Application E024 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1120/eng@2022-10-21

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