Moses Odero Owuor & 2 others v Andronico Otieno Anindo [2013] KECA 75 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend appeal time because the applicants were nearly two years late and hid that their earlier appeal had been struck out.
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 Court should exercise its discretion under Rule 4 to extend time within which to lodge an appeal
- 2.Whether the applicants' explanation for the delay of nearly two years was satisfactory
- 3.Whether the applicants were candid in their application, having failed to disclose that their earlier Notice of Appeal and record of appeal had been struck out
Key legal issues
#Whether the delay of nearly two years was excusable
The delay was inordinate and the explanation false: the applicants had in fact filed a Notice of Appeal and record of appeal in October 2011, so their claim that they only learned of the judgment in February 2012 was not candid.
The judgment was delivered on 30 September 2011 and the application lodged on 30 August 2013, a delay of nearly two years. The applicants claimed ignorance of the judgment until 24 February 2012, but the respondent exhibited a Notice of Appeal and record of appeal filed on 28 October 2011, whose authenticity was not denied. This contradicted the applicants' explanation, and the further delay of about 3½ months after the striking out of those documents on 17 May 2013 was wholly unexplained.
Effect of non-disclosure and lack of candour on the Rule 4 discretion
Deliberate failure to disclose the striking out of the earlier Notice of Appeal and record of appeal disentitled the applicants to the exercise of the Court's discretion in their favour.
While the intended appeal was arguable, arguability alone does not secure extension of time. The applicants deliberately failed to disclose that their previous Notice of Appeal and record of appeal had been struck out, and did not explain the delay in filing the present application after that striking out. The burden lay on them to place sufficient material before the Court, and their conduct disentitled them to a favourable exercise of the unfettered discretion.
Legal principles established
#- Rule 4 confers an unfettered discretion on the Court to extend or refuse time, exercised on the Mutiso factors: length of delay, reason for delay, chances of the appeal, and prejudice to the respondent; the list is not exhaustive.
- The party seeking extension of time bears the burden of placing material before the Court upon which the discretion may be exercised, and candour and full disclosure are prerequisites to favourable exercise of that discretion.
Court orders
#- 1.The application for extension of time is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Relief refused
#Extension of time within which to lodge an appeal
The delay of nearly two years was inordinate and unexplained; the applicants were not candid, having concealed that their earlier Notice of Appeal and record of appeal had been struck out, disentitling them to the Court's discretion
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.
It is now well settled that the decision whether or not to extend time for appealing is essentially discretionary.
the discretion granted under rule 4 of the Rules of this Court to extend the time for lodging an appeal, is as is well known unfettered and is only subject to it being granted on terms as the Court may think just
However, the list is not exhaustive and each case is considered on the basis of it's own facts and peculiar circumstances.
The burden lies on the party seeking favourable exercise of courts' discretion to place some material before the Court upon which such discretion may be exercised.
In the result, I decline to exercise my discretion in the applicants' favour. Accordingly the application is dismissed with costs.
Issues in the judgment
#The case number of this application is not stated in the judgment; the parties before the court are named only as the three applicants and an unnamed respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Odero Owuor & 2 others v Andronico Otieno Anindo [2013] KECA 75 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/75/eng@2013-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.