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Court of AppealAllowedNot stated in the judgment· [2026] KECA 210 (KLR)

Thomson Kerongo & 1 other v Ogembo Tea Factory & 7 others

Court of Appeal of Kenya
5 February 2026
475 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal excused a two-day late appeal filing caused by a missing court file, extending time for the applicants to appeal.

What this practically means

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Executive summary

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This is a short single-judge ruling of the Court of Appeal at Kisumu, delivered by L. Kimaru, JA, on 5th February 2026, on an unopposed notice of motion brought under Rule 4 of the Court of Appeal Rules seeking extension of time to file a notice of appeal. The applicants, acting in person, were aggrieved by a Ruling of the High Court delivered on 2nd July 2025. They filed their notice of appeal on 18th July 2025, two days beyond the fourteen-day period prescribed by the Rules, because the Registry informed them that the notice could not be received until the trial court file — which could not be traced — was located. The respondents were served but filed no replying affidavit, leaving the application unopposed. Applying the well-established Rule 4 criteria drawn from Fakir Mohamed v. Joseph Mugambi & others [2005] eKLR — the reason for and length of the delay, the arguability of the intended appeal and prejudice to the respondents — the Court found the explanation satisfactory, held the two-day delay excusable and not inordinate, and concluded the respondents would suffer no prejudice. The Court allowed the application, granted the extension, and directed that the notice of appeal be filed and served within fourteen days and the record of appeal within forty-five days, with no orders as to costs. The ruling is procedural and does not disturb or review the merits of the High Court's decision.

Key legal issues

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01

Whether a two-day delay in filing a notice of appeal, caused by the unavailability of the trial court file, is excusable and warrants extension of time

Holding

Yes. The delay of two days was excusable and not inordinate; the applicants, acting in person, were prevented from filing in time because the court file could not be traced, and the respondents would suffer no prejudice.

Reasoning

The Court applied the established Rule 4 factors set out in Fakir Mohamed v. Joseph Mugambi & others: reason for delay, length of delay, arguability of the intended appeal and prejudice to the respondent. It found the applicants' explanation — that the Registry declined to receive the notice of appeal because the court file could not be traced — credible and sufficient. A two-day delay was held not inordinate, the application was unopposed, and no prejudice to the respondents was identified. Judicial discretion was therefore exercised in the applicants' favour.

p. 2

Legal principles established

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  • In an application for extension of time under Rule 4, the court considers the reasons for the delay, the length of the delay, the arguability of the intended appeal and whether the respondent will suffer prejudice, exercising judicial discretion.

Court orders

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  1. 1.The application for extension of time is allowed
  2. 2.The applicants are granted extension of time to file the notice of appeal out of time
  3. 3.The notice of appeal shall be filed and served within fourteen (14) days of the date of the order
  4. 4.The record of appeal shall be filed and served within forty-five (45) days of the date of the order
  5. 5.There shall be no orders as to costs
On appeal from
High Court
Not stated in the judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (inherent/appellate jurisdiction to extend time for filing a notice of appeal)

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, "Thomson Kerongo & 1 other v Ogembo Tea Factory & 7 others", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/210/eng@2026-02-05

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