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Court of AppealAllowedNot stated in the judgment

Omole (Suing as the Legal Representative of the Estate of the Late Grace Adhiambo Dongo - Deceased) v Rorio (Civil Application E163 of 2025) [2026] KECA 209 (KLR)

Court of Appeal of Kenya
5 February 2026
529 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

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Kenya's Court of Appeal allowed an out-of-time appeal because the parties were never told the judgment delivery date, so the delay wasn't their fault.

What this practically means

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Executive summary

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The applicant, aggrieved by a High Court judgment rendered on 30th October 2025, sought extension of time under Rule 4 of the Court of Appeal Rules to lodge a notice of appeal out of time. The judgment had been scheduled for delivery on 16th October 2025 but was not delivered that day owing to the absence of the court; it was instead delivered on 30th October 2025 without notice to the parties. The applicant learned of the delivery only on 22nd November 2025 when he inquired, by which time the period for filing the notice of appeal had expired. He filed the application on 2nd December 2025. The application was unopposed, the respondent having been served but filing no replying affidavit. Applying the settled Rule 4 principles - reason for delay, length of delay, chances of the appeal succeeding, and prejudice to the respondent, as laid down in Paul Wanjohi Mathenge v. Duncan Gichore Mathenge - the court found the delay was occasioned by reasons beyond the applicant's control, that he acted expeditiously upon learning of the judgment, and that the application was unopposed. The court allowed the application, granted extension of time, and directed that the notice of appeal be filed and served within forty-five days, with no orders as to costs. The decision below was not disturbed; this was an interlocutory procedural ruling, not a determination of the appeal itself.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted extension of time to file a notice of appeal out of time
  2. 2.Whether the reasons for the delay, its length, the chances of the appeal succeeding and any prejudice to the respondent justify the extension

Key legal issues

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01

Whether delay occasioned by delivery of judgment without notice to the parties justifies extension of time

Holding

Yes. Where judgment is delivered in the absence of the parties without notification of the delivery date, the resulting delay is attributable to reasons beyond the applicant's control, and prompt application thereafter warrants extension of time.

Reasoning

The court found the judgment was delivered on 30th October 2025 without the parties being notified; the applicant learned of it only upon inquiry on 22nd November 2025, by which time the notice-of-appeal period had expired. He filed the application on 2nd December 2025, acting expeditiously. The application was unopposed, no replying affidavit having been filed, and no prejudice to the respondent was identified. The court was convinced the delay was beyond the applicant's control and allowed the application.

p. 2

Legal principles established

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  • An application under Rule 4 of the Court of Appeal Rules is an exercise of judicial discretion governed by four principles: reason for delay, length of delay, chances of the appeal succeeding, and prejudice to the respondent.

Court orders

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  1. 1.Extension of time granted to file the notice of appeal out of time
  2. 2.The notice of appeal to be filed and served within forty-five (45) days of the date of the ruling
  3. 3.No orders as to costs

The bench

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

majority

Wrote the judgment

On appeal from
High Court
Not stated in the judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (inherent/appellate discretion to extend 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 applicant is granted extension of time to file the notice of appeal out of time. The said notice of appeal shall be filed and served within forty-five(45) days of today’s date. There shall be no orders as to costs.
p. 2Final orders - extension of time granted
The Judgment that is subject of this application was delivered in the absence of the parties. The parties were not notified of the date the Judgment was to be delivered.
p. 2Reason for delay
This Court is convinced by the reasons advanced by the applicant for delay in lodging the notice of appeal in time. It was reasons beyond his control.
p. 2Discretion exercised in favour of the applicant

Issues in the judgment

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minor

The judgment does not state the case number, the neutral citation, or the name of the respondent; the parties and the appeal below are identified only generically.

minor

The judgment is signed only by L. Kimaru, JA, and includes a Deputy Registrar certification that it is a true copy of the original, suggesting this is a certified copy rather than the original signed judgment.

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, "Omole (Suing as the Legal Representative of the Estate of the Late Grace Adhiambo Dongo - Deceased) v Rorio (Civil Application E163 of 2025) [2026] KECA 209 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/209/eng@2026-02-05

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