Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application (not stated in full)

Dismas Otany Otany v John Osonga Mimbi [2013] KECA 40 (KLR)

Court of Appeal of Kenya
20 December 2013
732 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused to excuse a 211-day delay in filing an appeal because the applicant could not explain it or show the appeal had merit.

What this practically means

#

Executive summary

#
This was a single-judge application to the Court of Appeal at Kisumu under rule 4 of the Court of Appeal Rules, seeking extension of time to file and serve a Notice of Appeal out of time against a High Court judgment delivered by Ali-Aroni J on 8th December 2011. The applicant, Dismas Otany Otany, blamed his advocate on record for failing to notify him of the judgment, asserted that the appeal had high chances of success, and contended that the respondent would suffer no prejudice. The court reiterated that although the rule 4 discretion is unfettered, it must be exercised judicially upon reasons, and applied the familiar fourfold test from Leo Sila Mutiso v Rose Hellen Wangari Mwangi: the length of the delay, the reason for it, the arguability of the intended appeal, and prejudice to the respondent. The court found the delay was about 235 days, reduced to roughly 211 days after deducting the Christmas vacation, and that it had not been satisfactorily explained: the applicant did not identify the advocate, did not state when he learned of the judgment, and no affidavit from the advocate was filed. The applicant also failed to demonstrate that the intended appeal was arguable. Although the application was unopposed, the court held that this did not entitle the applicant to the indulgence of the discretion, and dismissed the application with no order as to costs.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted extension of time to file and serve the Notice of Appeal out of time

Key legal issues

#
01

Whether extension of time should be granted under rule 4 of the Court of Appeal Rules

Holding

Extension refused: the delay of about 211 days was unexplained and the intended appeal was not arguable.

Reasoning

The discretion under rule 4 is unfettered but must be exercised judicially upon reasons. The court applies the factors in Leo Sila Mutiso v Rose Hellen Wangari Mwangi: length of delay, reason for delay, arguability of the appeal, and prejudice to the respondent. The applicant blamed an unnamed advocate without affidavit evidence, did not say when he learned of the judgment, and could not show arguability despite exhibiting the High Court judgment. The unopposed nature of the application did not compel the court to grant it.

p. 2

Legal principles established

#
  • In an application for extension of time under rule 4, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent; the discretion must be exercised judicially upon reasons.

Court orders

#
  1. 1.The application dated 16th July 2013 seeking extension of time to file and serve Notice of Appeal out of time is dismissed
  2. 2.No order as to costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Sitting singly under rule 4, declined to extend time to file a Notice of Appeal out of time, holding the 211-day delay unexplained and the intended appeal not arguable.

The application is therefore without merit and is dismissed. I make no order as to costs.p. 2
On appeal from
High Court of Kenya
not stated
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

Relief refused

#

Extension of time to file and serve Notice of Appeal out of time against the High Court judgment of 8th December 2011

The delay of about 211 days (after deducting the Christmas vacation) was not adequately explained, the intended appeal was not arguable, and the applicant's affidavit gave no details of the advocate blamed for the delay.

p. 2

Costs

I make no order as to 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 discretion however, like all judicial discretions must be exercised judicially upon reasons and not upon the Court's whims or caprice.
p. 2Nature of the rule 4 discretion
first, the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.
p. 2Guiding principles for extension of time
The application is therefore without merit and is dismissed. I make no order as to costs.
p. 2Final orders

Issues in the judgment

#
minor

Internal date inconsistency: the supporting affidavit is described as sworn on 16th July 2012 in the body, but the application is dated 16th July 2013, and the ruling is delivered 20th December 2013.

minor

The judgment computes delay from 8th November 2011 while elsewhere stating the High Court judgment was delivered on 8th December 2011.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Dismas Otany Otany v John Osonga Mimbi [2013] KECA 40 (KLR)", Case Analysis (2013). Civil Application (not stated in full). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/40/eng@2013-12-20

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