Joseph Eric Owino v Eunic Orare Were [2002] KECA 275 (KLR)
The bottom line
#Kenya's Court of Appeal refused to revive a late appeal, saying a 22-month delay explained only by 'getting client instructions' was simply too long.
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 should be granted an extension of time under rule 4 of the Court of Appeal Rules to file and serve the notice of appeal and the record of appeal.
- 2.Whether the delay of about 22 months in bringing the application was inordinate and whether it was properly explained.
Key legal issues
#Whether the delay of about 22 months in filing the rule 4 application was inordinate and properly explained.
The delay was inordinate and not properly explained; time taken up in obtaining instructions was insufficient, and less than proper diligence was shown.
The application was filed on 2 May 2002 in an intended appeal from a decision given on 10 August 1989, and followed an earlier application struck out for being out of time on 21 February 2002. The only explanation offered was that time was taken up obtaining instructions. The judge found the roughly 22-month delay inordinate, noting there was no suggestion the client was overseas, and concluded there was less than proper diligence. Because indulgence requires a properly explained delay, the discretion could not be exercised for the applicant.
Whether the discretion under rule 4 should nonetheless be exercised in the applicant's favour.
No. The application was dismissed with costs because the delay was not properly explained.
Extension of time is an indulgence conditioned on a proper explanation of the delay. The judge expressly stated that there can be no indulgence unless delay is properly explained, found the explanation here inadequate, and therefore declined to exercise his discretion in the applicant's favour, dismissing the application with costs.
Legal principles established
#- An extension of time under rule 4 of the Court of Appeal Rules is an indulgence that will not be granted unless the delay is properly explained.
- A delay of about 22 months in seeking an extension of time is inordinate, and time taken up in obtaining instructions does not excuse it where there is no suggestion that the client was overseas; less than proper diligence disentitles the applicant to the indulgence.
Court orders
#- 1.The application is dismissed with costs.
- 2.The notice of intention for reference under rule 54(1)(b) of the Rules given by Mr. Buluma was noted by the court ('It is so noted.').
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- The superior court (not further identified in the judgment)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules - the judgment opens: 'This is an application under rule 4 of our rules seeking an extension of time'
Relief refused
#Extension of time to file and serve the notice of appeal and the record of appeal
The delay of about 22 months was inordinate and not properly explained; time taken up in obtaining instructions did not amount to a proper explanation and less than proper diligence was shown, so the discretion could not be exercised in the applicant's favour.
Costs
The application is dismissed with costs.
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 application is dismissed with costs.
There can be no indulgence unless delay is properly explained. This is not the case here.
In my judgment this delay of about 22 months is inordinate particularly when it was not suggested the client was overseas. I think there was less than proper diligence shown.
An earlier application was struck out for being out of time. This was on 21 February, 2002.
Issues in the judgment
#The judgment text does not state the case title, appeal number, or the names of the parties; the applicant and respondent are identifiable only by role, and the roles 'appellant'/'respondent' in this brief are a mapping of 'applicant' and the opposing party.
The decision appealed from is identified only as a decision of 'the superior court' given on 10 August 1989, with no case number or presiding judge named; the text also contains the apparent OCR artifact 'thesuperior court' (missing space).
The judgment refers to 'this delay of about 22 months' without stating the period from which it is computed; the dates appearing on the face of the judgment (decision of 10 August 1989, earlier application struck out 21 February 2002, this application filed 2 May 2002) do not on their face yield a 22-month period.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Eric Owino v Eunic Orare Were [2002] KECA 275 (KLR)", Case Analysis (2002). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/275/eng@2002-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.