Habib v Ombai & another
The bottom line
#Kenya's Court of Appeal allowed a late land appeal filed after a lawyer's deadline miscalculation, but unusually ordered the winning applicant to pay the respondent's costs.
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 applicant has laid a sufficient basis for the exercise of the Court's discretion to extend time and deem the Memorandum of Appeal and Record of Appeal as duly filed within time
Key legal issues
#Whether the delay in filing the Memorandum and Record of Appeal was excusable
Yes. The delay was relatively short, satisfactorily explained as an inadvertent miscalculation of time by counsel, and nothing suggested it was deliberate or intended to obstruct justice.
The court applied the Mutiso principles. It found the Notice of Appeal was filed in time and steps were taken to obtain certified copies. The delay stemmed from a genuine misapprehension in computing the deadline. Precedent establishes that a plausible explanation for a genuine counsel mistake suffices, especially where the delay is not inordinate and no deliberate omission is shown.
Whether the respondents would suffer prejudice if the application were allowed
No irreparable prejudice was demonstrated; any inconvenience can be compensated by costs, whereas refusal would permanently shut the applicant out of the appellate process.
The court weighed the absence of demonstrable prejudice against the severe consequence of denying the application, namely the loss of the right of appeal without a hearing on the merits. Substantive justice favoured regularising the filing, and costs were used as the compensatory mechanism for the respondent.
Legal principles established
#- In considering whether or not to extend time, the Court takes into account the length of the delay, the reason for the delay, the chances of success of the intended appeal and the degree of prejudice to the respondent.
- A genuine mistake of counsel may constitute a sufficient basis for extension of time where a plausible explanation is offered and the delay is not inordinate.
Court orders
#- 1.The Memorandum of Appeal dated 30th July, 2025, and the Record of Appeal dated 1st August, 2025, are deemed as duly filed upon payment of the requisite fees, if any
- 2.The costs of the application shall be paid to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court of Kenya at Kisumu
- Kisumu ELCA No. E035 of 2022
- Jurisdiction invoked
- Section 3(1) of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, 2022
Relief refused
#Costs of the application in favour of the applicant
Although the application succeeded, costs were awarded to the respondent
Costs
The costs of the application shall be paid 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.
Accordingly, I would allow the application and order that the Memorandum of Appeal dated 30th July, 2025, and the Record of Appeal dated 1st August, 2025, be and are hereby deemed as duly filed upon payment of the requisite fees, if any.
where a plausible explanation is offered, a genuine mistake of counsel may constitute a sufficient basis upon which the Court may exercise its discretion, particularly where the delay is not inordinate
in considering whether or not to extend time, the Court takes into account, inter alia, the length of the delay, the reason for the delay, the chances of success of the intended appeal and the degree of prejudice
denial of the orders sought would have the effect of permanently, shutting the applicant out from the appellate process without the intended appeal being heard on its merits.
Issues in the judgment
#The 1st respondent's affidavit describes her as having been dismissed at trial and succeeding on appeal to the EL Court, an unusual procedural posture not otherwise explained.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Habib v Ombai & another", Case Analysis (2026). Civil Application E200 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1745/eng@2026-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.