Chepngetich & another v Tonui
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the delay of close to three years in filing the notice of appeal should be excused
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
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.
Whether the intended appeal was arguable
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
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
#- 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
#- 1.The application for extension of time is dismissed with costs to the respondent
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.