Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedNot stated in the judgment (application dated 24th October 2024)

Co-operative Bank of Kenya Limited v Owino alias Victor Brian Owino & 2 others (Civil Application E154 of 2024) [2025] KECA 344 (KLR)

Court of Appeal
21 February 2025
580 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal allowed Co-operative Bank to appeal a Kshs 1 million damages award, ruling a short, explained delay is not fatal to an appeal.

What this practically means

#

Executive summary

#
This is a single-judge ruling of the Court of Appeal at Kisumu on a notice of motion dated 24th October 2024 by Co-operative Bank of Kenya Limited, seeking leave to file a notice of appeal out of time under rule 4 of the Court of Appeal Rules, 2022. The underlying dispute arose from CMCC No. 664 of 2016, in which the 1st respondent sued the bank and Khetia Drapers Limited for breach of contract and defamation; the trial court awarded the 1st respondent Kshs.500,000 against the bank. On appeal, the High Court at Bungoma (Kemei, J), in a decision of 30th September 2024, dismissed the bank's appeal but allowed the 1st respondent's cross-appeal, raising general damages to Kshs.1,000,000. The bank explained that internal approvals and a change of advocates caused it to miss the 14th November 2024 deadline for filing its notice of appeal. Muchelule, JA found the delay (under one month) satisfactorily explained, the intended grounds - attacking the inconsistency in the breach finding and the unreasoned increase in damages - not frivolous, and no prejudice shown since the application was unopposed. Applying the settled rule 4 principles, the court allowed the application, directing the bank to file and serve the notice of appeal within 7 days and the memorandum and record of appeal within 45 days. No costs order was made. The decision on the appeal itself remains for the full hearing.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted leave to file and serve a notice of appeal out of time
  2. 2.Whether the explanation for the delay was satisfactory and the delay inordinate
  3. 3.Whether the intended appeal has arguable grounds
  4. 4.Whether the respondents would suffer prejudice if the extension were granted

Key legal issues

#
01

Whether the delay of under one month was satisfactorily explained

Holding

A delay of less than a month, explained by internal approvals and a change of advocates, is satisfactory.

Reasoning

The court counted the delay from the date the notice of appeal should have been filed and found it to be less than a month. The explanation that internal policy-making approvals delayed the decision to appeal and necessitated a change of counsel was accepted as satisfactory. A short delay, adequately explained, justifies the exercise of the rule 4 discretion in favour of the applicant.

p. 2
02

Whether the intended appeal was arguable and whether the respondents would be prejudiced

Holding

The proposed grounds, concerning inconsistency of findings and an unreasoned increase in damages, were not frivolous, and no prejudice was shown given the absence of any response.

Reasoning

The intended appeal attacks the judge's finding of breach despite an earlier finding that the applicant may not have known the transaction was declined, and the doubling of damages without reasons. The court found these grounds not frivolous on their face. Since the application was served but drew no response, no prejudice to the respondents was demonstrated.

p. 2

Legal principles established

#
  • In an extension-of-time application under rule 4, the applicant must explain the delay, show it is not inordinate, show the intended appeal is arguable, and show no undue prejudice to the respondent.

Court orders

#
  1. 1.Leave granted to the applicant to file and serve the notice of appeal out of time
  2. 2.The applicant to file and serve the notice of appeal within 7 days
  3. 3.The applicant to thereafter file and serve the memorandum and record of appeal within 45 days

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court at Bungoma
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (extension of time to file notice of appeal)

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I consider that the delay in bringing the application for extension of time was for less than a month, counting from the date the notice of appeal should have been filed. I consider the explanation as being satisfactory.
p. 2Satisfactory explanation for short delay
the Court will want the applicant to explain why he did not bring the notice of appeal within time; to show that the delay that the Court is dealing with is not inordinate; that the intended appeal has possible chances of success; and that the respondent will not be unduly prejudiced, if time to appeal extended
p. 2Rule 4 extension-of-time principles
Accordingly, I allow the application. The applicant shall within 7 days, file and serve the notice of appeal and thereafter within 45 days, file and serve the memorandum and record of appeal.
p. 2Final orders

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Co-operative Bank of Kenya Limited v Owino alias Victor Brian Owino & 2 others (Civil Application E154 of 2024) [2025] KECA 344 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 24th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/344/eng@2025-02-21

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