Ochung & 3 others v Ochung & 3 others
The bottom line
#The Court of Appeal refused to excuse a 30-month delay in filing an appeal, stressing that only a proper certificate of delay protects appellants' time.
What this practically means
#Executive summary
#Key legal issues
#Competence of the further-evidence limb before a single judge
The single judge declined to determine the limb seeking leave to adduce further evidence.
Rule 29 (now rule 31) applications for leave to adduce additional evidence are reserved to the full Court; a single judge has no jurisdiction to hear or determine that limb, so it was not considered on the merits.
Timeliness of the notice of appeal
The notice of appeal was lodged on July 17, 2019, within time under rule 75 (now rule 77), despite an erroneous deposition of a later date.
Although the supporting affidavit wrongly deposed that the notice was lodged on July 15, 2021, the attached copy showed lodgement on July 17, 2019, eight days after the ruling, satisfying rule 75.
Computation of time for instituting the appeal
Without the certificate of delay envisaged by rule 82, the applicants could not benefit from the proviso exclusion; time ran from July 17, 2019, making the application about 30 months late.
The applicants requested proceedings under the proviso and subrule 2, but produced only a Deputy Registrar's stamp certifying the judgment copy, not the certificate of the preparation-and-delivery period. No explanation was given for its absence, so the statutory respite was unavailable.
Exercise of rule 4 discretion to extend time
The inordinate and unexplained delay of about 30 months disentitled the applicants to an extension under the Mutiso parameters.
Covid-19 closure of the registry was not demonstrated; even accepting supply of proceedings on February 25, 2020, delay exceeded 24 months; blaming the former advocate was implausible absent evidence of efforts to make the application earlier.
Legal principles established
#- An application for leave to adduce further evidence on appeal is not a matter for a single judge of the Court of Appeal.
- A stamp certifying a copy of a judgment as a true copy is not the certificate of delay contemplated by rule 82; without it the appellant cannot benefit from exclusion of the preparation period, and time runs from lodgement of the notice of appeal.
Court orders
#- 1.The notice of motion dated June 3, 2022 is dismissed with costs
- On appeal from
- High Court of Kenya at Kisumu
- HC. Succession Cause No. 654 of 2015
- Jurisdiction invoked
- Rules 4 and 29 (now 31) of the Court of Appeal Rules 2010; leave to file appeal out of time
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochung & 3 others v Ochung & 3 others", Case Analysis (2022). Civil Application E078 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1246/eng@2022-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.