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Court of AppealPartially AllowedCivil Application No. E175 of 2025· [2026] KECA 1744 (KLR)

Philip Juma Akoth v Maxwell Otieno Odongo & 4 Others

Court of Appeal
21 September 2025
2,443 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a litigant more time to seek Supreme Court review because his lawyer's illness and accident explained the delay, though he still pays costs.

What this practically means

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Executive summary

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This is a single-judge (in chambers) ruling of the Court of Appeal at Kisumu on a Notice of Motion dated 30th December 2025 by Philip Juma Akoth, the unsuccessful appellant in Civil Appeal No. E027 of 2021, dismissed with costs on 3rd October 2025 (Omondi, Kimaru & Achode, JJ.A.). He sought extension of time to file an application for certification that a matter of general public importance is involved in, and for leave to appeal to, the Supreme Court, and that the application filed on 22nd December 2025 be deemed duly filed. The delay was attributed to his counsel's serious illness and hospitalisation from 16th October 2025 and a road traffic accident on 22nd/23rd November 2025 impairing his eyesight. The 1st respondent opposed, contending the delay was inordinate and unexplained, the application was an afterthought prompted by impending execution, and the intended appeal raised no matter of general public importance under Article 163(4)(b), being a private, fact-specific land ownership dispute. Applying the Salat criteria, the judge held the delay was not inordinate, the explanation was supported by sworn depositions and a medical report and not shown to be false or in bad faith, and no prejudice beyond compensable costs was demonstrated. The court declined to pronounce on the certification threshold, reserving that for the bench hearing the substantive application. The application was allowed: time extended, the certification application deemed filed upon payment of fees, but costs awarded to the 1st respondent.

Key legal issues

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01

Whether the delay in filing the application for certification and leave was satisfactorily explained

Holding

Yes. The delay was not inordinate and the explanation - counsel's illness and road traffic accident affecting his eyesight - was supported by sworn depositions and a medical report and accepted by the court.

Reasoning

The court found the delay relatively short and not inordinate. The explanation, though contested, was not shown to be manifestly false or made in bad faith. Sworn depositions and a medical report demonstrated circumstances capable of affecting counsel's ability to act within the stipulated period, which the judge accepted.

p. 18
02

Whether the respondents would suffer prejudice if time were extended

Holding

No compensable prejudice was demonstrated; the respondents' right to enjoy the fruits of the judgment would not be extinguished by a modest extension.

Reasoning

The court held that any prejudice could be compensated by costs. Extension of time merely affords the applicant the opportunity to exhaust the appellate process; it does not extinguish the respondents' accrued rights under the judgment below.

p. 18

Legal principles established

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  • Extension of time is not a right but an equitable remedy available to a deserving party at the discretion of the Court, guided by the Salat considerations
  • Where a reasonable explanation for delay is offered, the discretion to extend time should be exercised to facilitate rather than impede access to justice
  • On an extension-of-time application, the court need not determine whether the intended appeal meets the certification threshold under Article 163(4)(b); that falls to the bench hearing the substantive application

Court orders

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  1. 1.Time is extended within which to file the application for certification and leave to appeal to the Supreme Court
  2. 2.The application for certification and leave to appeal filed on 22nd December, 2025 is deemed as duly filed and properly on record upon payment of the requisite fees
  3. 3.Costs of the application awarded to the 1st respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 163(4)(b)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 42
  • Supreme Court RulesRule 36

Cases cited (5)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR

    Principles governing extension of time: length of delay, reason, prejudice, arguability, interests of justice.

  • Sokoro Savings and Credit Cooperative Society Ltd v Abeid Mwamburi
    [2023] KECA 381 (KLR)

    Extension of time is a discretionary remedy requiring satisfactory explanation, decided case-by-case.

  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR

    Extension of time is discretionary and requires satisfactory explanation for delay.

  • Philip Keipto Chemwolo & another v Augustine Kubende
    [1986] KLR 14

    Reasonable explanation for delay should facilitate rather than impede access to justice.

  • Fahim Yasin Twaha v Timamy Issa Abdalla & 2 Others
    [2015] eKLR

    Counsel's mistakes, inadvertence or difficulties do not automatically entitle a litigant to extension of time.

On appeal from
Court of Appeal at Kisumu
Civil Appeal No. E027 of 2021 (10 of 2021)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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, "Philip Juma Akoth v Maxwell Otieno Odongo & 4 Others", Case Analysis (2025). Civil Application No. E175 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1744/eng@2026-09-21

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