Kennedy Ochieng Otieno & another v Elisaphan Omolo Nyasita [2019] KECA 690 (KLR)
The bottom line
#Kenya's Court of Appeal extended an appeal deadline despite poor explanations, but made the lawyer personally pay the costs of the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of approximately two months in filing the application for extension of time, after collection of typed proceedings on 28th January, 2019, warranted dismissal of the application
The court found the delay not inordinate, accepted that the proceedings were ready and collected on 28th January, 2019, and exercised its discretion to extend time despite an unconvincing explanation for counsel's further delay, so as not to penalise the client for counsel's inadvertence.
The court accepted the date of certification of the typed proceedings (28th January, 2019) as establishing when the proceedings were ready, making the initial delay in lodging the record sufficient explained. The unexplained two-month gap before filing the application was attributed to counsel's inadvertence in relying on Registry staff advice rather than due diligence. Applying the principle that counsel's mistake should not be visited on the client, and noting the matter concerned land, the court extended time but imposed costs personally on counsel to mark the professional lapses.
Whether reliance by counsel on advice from Registry staff to file an application for extension of time was a sufficient explanation
No - it is not the duty of Registry staff to advise counsel on procedure; counsel conducting the client's case must exercise due diligence in discharging professional duties.
The applicant's only explanation for the two-month delay after collecting the typed proceedings was that Registry staff advised that an extension application be made. The court rejected this, holding that Registry staff bear no duty to advise counsel, and that the advocate with conduct of the matter must exercise due diligence. While this rendered the explanation unconvincing, the court balanced it against the non-inordinate length of the delay and the land subject matter, extending time but shifting costs personally onto counsel.
Legal principles established
#- Grant of leave to extend time is a discretionary exercise that must not be exercised whimsically, arbitrarily or capriciously, and an applicant must explain the delay, show it is not inordinate, and apply timeously.
- Mistake or inadvertence by counsel should generally not be visited upon the client, particularly in land matters; the court may nonetheless impose personal costs on inadvertent counsel.
Court orders
#- 1.Time extended to file the record of appeal
- 2.Applicant to file and serve the Record of Appeal within 14 days of the date of the ruling
- 3.Respondent's costs of the application to be paid personally by counsel for the applicant, assessed by consent at Kshs.10,000/=, to be paid before the Record of Appeal is filed
- On appeal from
- Environment and Land Court
- Not stated in judgment
- Jurisdiction invoked
- Inherent/appellate discretion to extend time for filing and service of the record of appeal (leave application under the Court of Appeal procedural regime; specific rule not cited in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kennedy Ochieng Otieno & another v Elisaphan Omolo Nyasita [2019] KECA 690 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/690/eng@2019-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.