Lamayian & another v Chebet (Civil Application E193 of 2024) [2025] KECA 1614 (KLR)
The bottom line
#The Court of Appeal refused to revive a five-year-old appeal, ruling that blaming your lawyer does not excuse a litigant's own delay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants are innocent victims of their advocate's mistake such that time should be extended to file the memorandum and record of appeal out of time
- 2.Whether the application was made without unreasonable delay
- 3.Whether the applicants have met the threshold for the exercise of the court's discretion under Rule 4 of the Court of Appeal Rules
Key legal issues
#Extension of time under Rule 4 of the Court of Appeal Rules
The court's discretion under Rule 4 is wide and unfettered but must be exercised judiciously; the applicants' inordinate delay of over five years disqualified them from its exercise.
The court reiterated that the discretion must be exercised on reason, not caprice, citing M'Inoti, JA in Imperial Bank on the legislative history of Rule 4. A party seeking extension must establish a basis for the exercise of the discretion. The delay here exceeded five years from the ruling of 18th December 2019, was characterised as indolence, and the applicants offered no evidence of following up their former advocate.
Mistake of counsel as a ground for extension of time
Mistake of counsel does not of itself cure a litigant's own inaction; the primary responsibility to comply with timelines rests on the litigant.
The court noted there was no evidence - letter or text message - demonstrating the previous advocate had been contacted. Relying on Habo Agencies Limited, it held that parties must show interest in and follow up their cases even when represented. It is the litigant's case, not counsel's, and timelines under the Court's Rules rest heavily on the litigant's shoulders.
Non-compliance with Rule 75(2) on lodgement of Notice of Appeal
Failure to lodge a Notice of Appeal within fourteen days renders it invalid and not properly on record.
The court identified Rule 75(2) as governing the validity of the Notice of Appeal. The applicants sought to enlarge time precisely because of this default, but the court found the threshold for relief unmet given the inordinate delay and lack of diligence.
Legal principles established
#- A Notice of Appeal must be lodged within fourteen days of the impugned decision under Rule 75(2) of the Court of Appeal Rules; if not, the Notice of Appeal is invalid and not properly on record.
- The primary responsibility to act within prescribed timelines rests on the litigant, not counsel; blaming an advocate does not of itself excuse a litigant's inaction.
- The discretion to extend time under Rule 4 is wide and unfettered but must be exercised judiciously and upon reason, not arbitrarily or on a whim.
Court orders
#- 1.The applicants' application for extension of time to file the memorandum of appeal and record of appeal out of time is dismissed
- 2.Costs of the application are awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (Kisii)
- Succession cause number not stated in the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (inherent discretionary power to extend time)
Relief refused
#Extension of time to file and serve the memorandum of appeal and record of appeal out of time
The delay of over five years was inordinate and reeked of indolence; the applicants failed to meet the threshold for the exercise of the court's discretion under Rule 4, and mistake of counsel does not of itself cure a litigant's own inaction.
Costs
The application is dismissed with costs to the respondent.
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 find that the Applicant has failed to meet the threshold set out for this court to exercise its discretion in his favour and grant the extension. The application is thus without merit; and is dismissed with costs to the respondent.
The primary responsibility to act within the prescribed timelines under this Court’s Rules rests heavily on the litigant’s shoulders.
It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation.
The party seeking extension of time must establish basis upon which court should exercise its discretion in its favor.
Issues in the judgment
#The judgment states the impugned ruling was dated 3rd December 2019 but the delay is computed from a ruling 'given on the 18th December, 2019', creating an internal inconsistency as to the date of the decision below.
The court refers to the applicant in the singular ('his favour', 'the applicant's part') although there are two applicants before it.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lamayian & another v Chebet (Civil Application E193 of 2024) [2025] KECA 1614 (KLR)", Case Analysis (2025). Not stated in the judgment (Civil Application, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1614/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.