Dismas Otany Otany v John Osonga Mimbi [2013] KECA 40 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted extension of time to file and serve the Notice of Appeal out of time
Key legal issues
#Whether extension of time should be granted under rule 4 of the Court of Appeal Rules
Extension refused: the delay of about 211 days was unexplained and the intended appeal was not arguable.
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.
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.The application dated 16th July 2013 seeking extension of time to file and serve Notice of Appeal out of time is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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.
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.
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.
The application is therefore without merit and is dismissed. I make no order as to costs.
Issues in the judgment
#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.
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.