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Court of AppealAllowedNot stated in judgment· [2019] KECA 690 (KLR)

Kennedy Ochieng Otieno & another v Elisaphan Omolo Nyasita [2019] KECA 690 (KLR)

Court of Appeal of Kenya
3 June 2019
806 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a single-judge (in-chambers) ruling of the Court of Appeal at Kisumu by Otieno Odek, JA, on a Notice of Motion dated 5th April, 2019 seeking leave to extend time to file and serve the record of appeal against a judgment of the Environment and Land Court delivered on 20th November, 2018. The time for filing the record lapsed on 20th January, 2019. The applicant explained the delay by the late receipt of typed proceedings, said to have been certified and collected on 28th January, 2019; the respondent objected that there was no certificate of delay or correspondence showing when proceedings were requested or collected, and that no adequate explanation existed for the further two-month delay in filing the application itself, which the applicant attributed to advice from Registry staff. The court reaffirmed that extension of time is discretionary and must not be exercised whimsically, arbitrarily or capriciously, and that an applicant must explain the delay, show it is not inordinate, and apply timeously. Accepting the certification date as showing when proceedings were ready, the court found the initial delay sufficiently explained and not inordinate. It faulted counsel for relying on Registry staff rather than exercising due diligence, but held that counsel's inadvertence should not be visited on the client, particularly in a land matter. Time was extended, with the record to be filed and served within 14 days, and costs of Kshs.10,000/= assessed by consent were ordered to be paid personally by the applicant's counsel before filing the record. The application was therefore allowed; the decision below was not disturbed at this interlocutory stage.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 2
02

Whether reliance by counsel on advice from Registry staff to file an application for extension of time was a sufficient explanation

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Time extended to file the record of appeal
  2. 2.Applicant to file and serve the Record of Appeal within 14 days of the date of the ruling
  3. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.