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Court of AppealAllowedNot stated in the judgment (notice of motion under Rule 4 of the Court of Appeal Rules, Court of Appeal at Kisumu)

Okimaru & 4 others v Walime (As a Legal representative of the Estate of David Wanjala Welime (Deceased) & 2 others (Civil Application E079 of 2025) [2025] KECA 2060 (KLR)

Court of Appeal of Kenya
1 December 2025
712 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal gave landowners a second chance to appeal after their lawyer missed a filing deadline, ordering the appeal record filed within 30 days.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu, delivered by L. Kimaru JA on 1st December 2025, on a notice of motion under Rule 4 of the Court of Appeal Rules seeking extension of time to file the record of appeal. The applicants, aggrieved by a ruling of E. Cherono J delivered on 27th February 2025, filed a notice of appeal in time but their advocate omitted to write the letter bespeaking typed and certified copies of the proceedings as required by the proviso to Rule 84(1). By the time the proceedings were obtained, the thirty-day period for filing the record of appeal had expired, resulting in a four-month delay. The respondent opposed, contending the delay was inordinate and inexcusable and that the applicants did not deserve the exercise of discretion in their favour. The court, applying the principles in Paul Wanjohi Mathene v. Duncan Gichare Mathenge [2013] eKLR - that the Rule 4 discretion is unfettered but must be exercised judiciously with regard to the period of delay, reasons for delay, prejudice, and public importance - found the applicants had given a satisfactory explanation, the omission being an admitted honest oversight. Weighing the totality of the facts, including that the dispute concerns occupation of land, the court granted the extension, directed that the record of appeal be filed and served within thirty days, and awarded the respondent the costs of the application.

Questions the Court framed

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

  1. 1.Whether the applicants should be granted extension of time under Rule 4 of the Court of Appeal Rules to file the record of appeal out of time
  2. 2.Whether the applicants gave a satisfactory explanation for the delay in filing the record of appeal
  3. 3.Whether the delay of four months was inordinate and inexcusable such that the discretion should be withheld
  4. 4.Whether the respondents would suffer prejudice not compensable by costs

Key legal issues

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01

Exercise of discretion under Rule 4 of the Court of Appeal Rules

Holding

The applicants' failure to bespeak proceedings was an honest oversight by counsel; taking the totality of the facts, including that the dispute relates to occupation of land, extension of time was warranted.

Reasoning

The court applied the established Rule 4 factors: period of delay, reasons for delay, prejudice to the respondent, and public importance. It found the notice of appeal was filed in time and the omission of the bespeaking letter was an honest mistake by the advocate. The four-month delay, though inexcusable, was weighed against the applicants' right to ventilate an arguable appeal concerning occupation of land, with any prejudice to the respondent compensable by costs.

p. 2
02

Effect of failure to comply with the proviso to Rule 84(1) by bespeaking proceedings

Holding

Failure to write the bespeaking letter deprived the applicants of the benefit of a certificate of delay, causing the record of appeal to become due late; this was an oversight capable of excusal on extension.

Reasoning

The applicants filed the notice of appeal in time but their advocate, by an admitted honest mistake, did not write the letter bespeaking typed and certified copies of the proceedings as required by the proviso to Rule 84(1). Had he done so, a certificate of delay would have extended the filing period. By the time proceedings were obtained, the thirty days had elapsed. The court treated this as a satisfactory explanation for the delay rather than a deliberate default.

p. 2

Legal principles established

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  • The discretion under Rule 4 of the Court of Appeal Rules is unfettered but must be exercised judiciously, considering the period of delay, reasons for the delay, prejudice to the respondent and interested parties, and whether the matter raises issues of public importance.

Court orders

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  1. 1.The applicants are granted leave to file the record of appeal out of time
  2. 2.The record of appeal shall be filed and served within thirty (30) days of the date of the ruling
  3. 3.The respondent shall have the costs of the application

The bench

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

majority

Wrote the judgment

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On appeal from
High Court (Superior Court)
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Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

Quotable passages

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

The applicants are hereby granted leave to file the record of appeal out of time. The record of appeal shall be filed and served within thirty (30) days of today's date. The respondent shall have the costs of the application.
p. 2Final orders - extension of time granted
The discretion under Rule 4 is unfettered, but it has to be exercised judiciously, not on whim, sympathy or caprice.
p. 2Principles governing Rule 4 extension of time
Any prejudice that the respondent will sufier will be compensated by an award of costs.
p. 2Prejudice compensable by costs

Issues in the judgment

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minor

The judgment contains typographical errors ('inecusable' for 'inexcusable'; 'sufier' for 'suffer') and is signed by a single Judge of Appeal without a coram listing or stated case number.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Okimaru & 4 others v Walime (As a Legal representative of the Estate of David Wanjala Welime (Deceased) & 2 others (Civil Application E079 of 2025) [2025] KECA 2060 (KLR)", Case Analysis (2025). Not stated in the judgment (notice of motion under Rule 4 of the Court of Appeal Rules, Court of Appeal at Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2060/eng@2025-12-01

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