Kaseencha Ole Leipoi v D Sepeikan Koiwasei Kesaika & 2 others
The bottom line
#Kenya's Court of Appeal refused to extend an eleven-month delay in filing an appeal, ruling that lack of money alone doesn't explain missing appeal deadlines.
What this practically means
#Executive summary
#Key legal issues
#Whether order 9 rule 9 of the Civil Procedure Rules applies to filing an appeal in the Court of Appeal
It does not; an appeal is a commencement of new proceedings, so new counsel may come on record without a notice of change or leave
Following Tobias M. Wafubwa v Ben Butali, the court held that an appeal to an appellate court is not a continuation of the lower court proceedings but new proceedings governed by appellate rules, so parties may choose fresh counsel without order 9 rule 9 formalities. The respondent's competency objection therefore failed.
Whether the ~11-month delay was excusable
No; the delay was inordinate and inadequately explained, and financial hardship alone does not suffice
The impugned judgment was delivered on 2nd November 2023 and the application was filed on 30th September 2024, a delay of almost eleven months. The applicant gave no sufficient explanation; lack of resources was rejected since he could have filed a notice of appeal in person. Litigation is costly and litigants must bear attendant costs.
Whether the other Salat factors (arguability, prejudice, undue delay in bringing the application) favoured the applicant
Even considered, they did not assist the applicant; the intended appeal lacked good chances of success and litigation must come to an end
The court declined to reach the remaining Salat factors given the unexplained inordinate delay, but noted that even on a perusal of the impugned judgment and draft memorandum of appeal, the intended appeal was not persuasive. Prejudice to the respondent and the need for finality in litigation weighed against extension.
Legal principles established
#- Under the Court of Appeal rules, an advocate who did not act for a party in the lower court may be instructed to file an appeal before the Court of Appeal without order 9 rule 9 formalities, because an appeal is new proceedings
- Mere lack of financial resources is not a sufficient explanation for inordinate delay in filing an appeal
- Any delay in filing an appeal must be satisfactorily explained; a plausible and satisfactory explanation unlocks the court's discretion
Court orders
#- 1.The notice of motion dated 30th September 2024 seeking extension of time is dismissed with costs to the respondent
- On appeal from
- Environment and Land Court at Kajiado
- Not stated
- Jurisdiction invoked
- Inherent discretionary jurisdiction of the Court of Appeal to extend time for filing and service of a notice of appeal under the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaseencha Ole Leipoi v D Sepeikan Koiwasei Kesaika & 2 others", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1326/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.