Banareri (Legal Representative of the Estate of Sebastiano Nyandwar Ondima (Deceased)) v Okondo
The bottom line
#Kenya's Court of Appeal excused a 60-day filing delay caused by a lawyer's mistake, allowing the land dispute appeal to proceed.
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 60-day delay in filing and serving the record of appeal should be excused and time enlarged under Rule 4
- 2.Whether the delay was attributable to counsel's inadvertence rather than the applicant's indolence
- 3.Whether the respondent would suffer prejudice if the extension is granted
Key legal issues
#Whether counsel's inadvertence constitutes sufficient reason for extension of time
Yes, where the delay is genuine inadvertence and the applicant took all other timely steps; the mistake is not mere indolence to be visited on the applicant.
The court found the 60-day delay was explained as counsel's inadvertence, unrebutted by any other material. The applicant had timely filed and served the notice of appeal and requested certified proceedings. Citing the Supreme Court in Babubhai Bhangwanji Amba Madhwani, the court noted mistakes of counsel ought not be visited on litigants, but diligence must be shown, which was demonstrated here.
Whether the respondent suffered prejudice
Any prejudice is compensable by an order of costs.
The court accepted the applicant's submission that no substantial prejudice was demonstrated; the record of appeal had already been filed and served, and any prejudice to the respondent could be sufficiently provided for by way of costs.
Legal principles established
#- Extension of time under Rule 4 is discretionary and governed by the Leo Sila Mutiso parameters: length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent.
- A genuine mistake of counsel, not amounting to indolence, should not be visited upon the litigant where the party has otherwise diligently pursued the appeal.
Court orders
#- 1.Leave granted for enlargement of time for filing and serving the record of appeal dated 15th March, 2025
- 2.The record of appeal dated 15th March, 2025 deemed duly filed and served
- 3.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment & Land Court at Kisii
- ELC Case No. 128 of 2009
- Jurisdiction invoked
- Rules 4 and 43 of the Court of Appeal Rules, 2022 and Sections 3A and 3B of the Appellate Jurisdiction Act
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.
The upshot is that the delay is excusable. The applicant is granted leave for enlargement of time for filing and serving the record of appeal dated 15th March, 2025 which is hereby deemed duly filed and served, accordingly.
The inadvertence by counsel therefore appears to have been a genuine mistake by counsel and not mere indolence that can validly be visited upon the applicant.
It is not enough for a party to simply blame the former advocate for all manner of transgressions.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banareri (Legal Representative of the Estate of Sebastiano Nyandwar Ondima (Deceased)) v Okondo", Case Analysis (2026). Civil Appeal (Application) E282 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1947/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.