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Court of AppealDismissedCivil Application (Notice of Motion dated 8th April 2024)· [2024] KECA 869 (KLR)

Philip Obonyo Chunga v Joshua Christopher Amolo & 3 others

Court of Appeal
19 July 2024
1,835 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to forgive a ten-month appeal delay, confirming that blaming your lawyer is no excuse for a client who never followed up.

What this practically means

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Executive summary

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This was a single-Judge application before the Court of Appeal at Kisumu by Philip Obonyo Chunga, the 1st defendant in ELC E005 of 2022 (Siaya), seeking extension of time to file and serve a notice of appeal and record of appeal against a ruling delivered on 19th June 2023. That ruling had reviewed the ELC's judgment of 16th February 2023 in favour of the respondents, after the court found that the applicant and other defendants had subdivided the suit property, North Sakwa/Maranda/40, into parcels 4317 to 4322 while judgment was pending, in breach of lis pendens, and ordered the subdivisions reverted and the titles cancelled. The applicant, whose motion was filed over nine and a half months after the impugned ruling, explained the delay solely by blaming his former advocate for failing to advise him of the virtual delivery of judgment and for failing to lodge the appeal. Applying Rule 4 of the Court of Appeal Rules and the principles in Leo Sila Mutiso and Nicholas Kiptoo Arap Korir Salat, and following Habo Agencies Ltd v Wilfred Odhiambo Musingo, Okwengu JA held that extension of time is an equitable remedy for a deserving party, that the delay was inordinate and unexplained, and that a litigant cannot merely blame counsel's inaction without showing personal diligence. The application was dismissed with costs on 19th July 2024.

Key legal issues

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01

Whether the applicant explained the inordinate delay in filing the notice and record of appeal

Holding

The delay of over nine and a half months was inordinate and inadequately explained; blaming the former advocate was insufficient.

Reasoning

The ruling was delivered on 19th June 2023 and the motion dated 8th April 2024, a delay of about ten months. The applicant attributed the delay to his advocate's failure to advise him of the virtual judgment delivery and failure to lodge the appeal, but gave no specific dates or evidence of instructions. Following Leo Sila Mutiso and the Salat principles, the court found the explanation was merely an attempt to shift blame to counsel and could not pass muster.

p. 3
02

Whether the applicant demonstrated entitlement to the exercise of the court's discretion under Rule 4

Holding

The discretion was not exercised in the applicant's favour because he showed no justification.

Reasoning

Rule 4 confers a discretionary power which must be exercised judiciously. Applying the Salat principles, the court considered the length of and reasons for the delay, the burden on the applicant to lay a basis, and the absence of any demonstrated diligence by the applicant himself. Since the delay was neither explained nor justified, there was no basis for the discretionary relief sought.

p. 4

Legal principles established

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  • Blaming an advocate for inaction is not a sufficient explanation for delay; a litigant must show personal diligence in pursuing their case when seeking extension of time.
  • Extension of time under Rule 4 is a discretionary, equitable remedy available only to a deserving party who lays a basis to the court's satisfaction.

Court orders

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  1. 1.The application is dismissed with costs.
On appeal from
Environment and Land Court, Siaya
ELC E005 of 2022
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time), as a single Judge of the Court of Appeal

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, "Philip Obonyo Chunga v Joshua Christopher Amolo & 3 others", Case Analysis (2024). Civil Application (Notice of Motion dated 8th April 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/869/eng@2024-07-19

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