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Court of AppealDismissedNot stated in the judgment text supplied· [2025] KECA 1417 (KLR)

Isaac Pere v Timina Lekeni Osoi

Court of Appeal of Kenya
31 July 2025
PKP. O. Kiage
1,823 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 confirmed that if you miss the 30-day deadline to restore a dismissed appeal, it stays dismissed—no second chances.

What this practically means

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Executive summary

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By a notice of motion dated 1st April 2025, Isaac Pere, the appellant, sought extension of time to file an application for reinstatement out of time, and consequential review, variation or setting aside of the Court of Appeal's order of 5th February 2025 dismissing his appeal for non-attendance, together with reinstatement of the appeal. The appeal had been dismissed by the Court (Warsame, Mativo & Gachoka, JJ.A) on 5th February 2025 after the appellant and his counsel failed to appear despite service of the hearing notice on 22nd January 2025. The respondent opposed the motion as time-barred, incompetent and an abuse of process, contending that rule 105(3) required a restoration application within 30 days where the advocate was served with notice, and that mere counsel inadvertence did not suffice. Kiage, JA held that rule 105 contains a complete, self-contained mechanism for restoration, with a strict 30-day cut-off for a party who was served with notice, running from the date of dismissal. On his own showing the appellant knew the hearing date, so the application ought to have been filed by about 7th March 2025; it was filed on 1st April 2025, hopelessly out of time. The court held that the 30-day window is an exceptional indulgence strictly limited and not amenable to extension under Rule 4. The prayer for extension of time was disallowed and the application dismissed with costs. The ruling underscores that non-appearance at appellate hearings attracts dismissal as the normal consequence, and restoration is exceptional, discretionary on principle and evidence, and strictly time-bound.

Key legal issues

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01

Whether an out-of-time restoration application can be cured by an extension of time under Rule 4

Holding

No. The 30-day period in rule 105(3) is a strict cut-off that cannot be extended by resort to Rule 4.

Reasoning

Rule 105 contains an express self-contained mechanism for restoring a dismissed appeal, including a 30-day time limit for a party served with notice. The limit protects the opposite party, who honoured the hearing notice, from indefinite prejudice from re-opening closed litigation. The Rules Committee could not have intended a defaulting party to circumvent that limit through Rule 4; the 30 days is an exceptional indulgence, strictly limited and not amenable to extension.

p. 4
02

Consequence of non-appearance at the hearing of an appeal despite service of notice

Holding

Dismissal of the appeal is the normal consequence; restoration is exceptional and requires sufficient cause shown on evidence within the strict 30-day window.

Reasoning

Appellate practice rests on parties appearing through counsel to persuade the court orally. Notice of hearing safeguards the right to be heard; an appellant served with notice who fails to attend forfeits the hearing, and the appeal is dismissed under rule 105(1). The proviso allowing restoration is a qualification to finality, granted only on demonstrated sufficient cause, and its strict time limit accounts for the prejudice to the diligent opposite party.

p. 4

Legal principles established

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  • A party who fails to appear at the hearing of an appeal and also fails to apply for restoration within the stipulated 30 days cannot resort to Rule 4 to seek extension of time.
  • The 30-day restoration period under rule 105(3) is strictly limited and not extendable.
  • Restoration of a dismissed appeal is exceptional and must rest on sufficient cause, on principle and evidence.

Court orders

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  1. 1.Prayer for extension of time to file the restoration application disallowed; the application dismissed with costs
On appeal from
Court of Appeal (dismissed for non-attendance on 5th February 2025, Warsame, Mativo & Gachoka, JJ.A)
Not stated
Jurisdiction invoked
Rule 105 of the Court of Appeal Rules (restoration of dismissed appeal) and Rule 4 (extension of time), invoked by the applicant's motion

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, "Isaac Pere v Timina Lekeni Osoi", Case Analysis (2025). Not stated in the judgment text supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1417/eng@2025-07-31

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