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Court of AppealDismissedCivil Appeal (Application) E313 of 2022· [2022] KECA 1305 (KLR)

Chepngetich & another v Tonui

Court of Appeal
2 December 2022
1,519 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse a three-year delay in filing an appeal, confirming that litigants—not their advocates—must personally chase their cases.

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 Nairobi dismissing an application for extension of time to lodge a notice of appeal and record of appeal against the judgment of Obaga, J of the High Court (ELC Suit No. 227 of 2001) delivered on 31 October 2019, which declared the applicants and the respondent owners of LR No. 209/12919 as tenants in common in equal shares. The notice of motion, brought under sections 3A and 3B of the Appellate Jurisdiction Act and rules 4, 41 and 77 of the Court of Appeal Rules, sought to excuse a delay of close to three years, attributed by the first applicant to her former advocates' mistake, which she said she discovered only in August 2022 while living abroad. The respondent opposed, contending the delay was inordinate, unexplained and that the applicant only moved after the second applicant's stay application was dismissed in July 2022. Applying the Supreme Court's Salat criteria, Ngenye-Macharia, JA held that the applicant failed to demonstrate personal diligence - she produced no correspondence enquiring after her appeal - and that litigation belongs to parties, not advocates. The absence of a draft memorandum of appeal also meant arguability could not be established. The application was dismissed with costs to the respondent. The ruling binds subordinate courts and High Courts on the application of rule 4 and the diligence expected of litigants relying on advocate's mistake.

Key legal issues

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01

Whether the delay of close to three years in filing the notice of appeal should be excused

Holding

The delay was inordinate and inexcusable; the applicant sat back and only acted when a stay application was dismissed, so the discretion was not exercised in her favour

Reasoning

Applying the Salat criteria, the court found the explanation (advocate's mistake discovered in August 2022) insufficient because the applicant showed no personal diligence - no correspondence enquiring about the judgment or appeal. Litigation belongs to parties, not advocates, and the delay of nearly three years was unexplained to the court's satisfaction.

p. 3
02

Whether the intended appeal was arguable

Holding

The applicant did not attach a draft memorandum of appeal, so arguability could not be answered in the affirmative, though absence of a memorandum alone does not defeat the discretion

Reasoning

The court noted no draft memorandum was attached from which arguability could be assessed. While failure to attach a memorandum cannot by itself deny the discretion, combined with the inexcusable delay the applicant was undeserving of the favourable exercise of discretion.

Legal principles established

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  • Extension of time under rule 4 is an equitable discretionary remedy available only to a deserving party who explains the delay to the court's satisfaction
  • A litigant who attributes delay to an advocate's mistake must still show personal diligence in prosecuting the appeal

Court orders

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  1. 1.The application for extension of time is dismissed with costs to the respondent

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 41
  • Court of Appeal Rulesrule 77

Cases cited (1)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR

    Setting out the considerations for granting extension of time: equitable remedy, burden on applicant, reason for delay, prejudice, undue delay, public interest

On appeal from
High Court at Nairobi (Environment and Land Court)
H.C. ELC Suit No. 227 of 2001
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; rules 4, 41 and 77 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Chepngetich & another v Tonui", Case Analysis (2022). Civil Appeal (Application) E313 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1305/eng@2022-12-02

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