Willis Oneko Opiata v Fredrick Omondi Wera [2021] KECA 949 (KLR)
The bottom line
#The Court of Appeal dismissed a request for more time to appeal because the one-and-a-half-year delay was never properly explained, even though 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 Rule 5(2)(b) of the Court of Appeal Rules is applicable to an application of this nature
- 2.Whether the applicant has offered a plausible and satisfactory explanation for the delay of one year, six months and ten days
- 3.Whether the intended appeal is arguable
- 4.What prejudice, if any, the respondent would suffer if the extension were granted
- 5.Whether, on the totality of the Rule 4 factors, the extension of time should be granted
Key legal issues
#Whether the applicant's explanation for the delay was plausible and satisfactorily explained
The explanations (financial constraints, sickness, delayed certified proceedings, non-disclosure of two failed attempts in the trial court) were unsubstantiated; the prerequisite of satisfactory explanation was not satisfied.
The applicant did not say when he applied for or received certified copies of proceedings; the respondent's assertion that these were supplied in December 2019 was unrebutted, leaving about seven months unexplained. Financial constraints and sickness were given without details or proof, and no reason was given why the appellate process was not initiated in person. The applicant also failed to disclose his two unsuccessful applications to the trial court for similar relief.
Whether the intended appeal was arguable
The nineteen proposed grounds of appeal were arguable, as they warranted the respondent's response and the Court's interrogation, though arguability alone did not entitle the applicant to the relief.
Applying the crystallised case-law threshold that an arguable appeal need not be one that must succeed but one warranting full argument, the single judge found that the grounds attacking the trial court's findings on the respondent's beneficial claim, the chief's letter, and the grant obtained by concealment would all warrant response and interrogation. However, this factor had to be considered together with the other Rule 4 factors, which the applicant failed to establish.
Applicability of Rule 5(2)(b) to an extension of time application
Rule 5(2)(b) was cited out of context and struck out; only Rule 4 governs the application.
Rule 5(2)(b) concerns applications for orders in the nature of injunctions or stays pending appeal, not extension of time to lodge an appeal. The judge struck the citation out and confined consideration to Rule 4, which empowers the Court to extend time limited by the Rules for doing any act, on such terms as it thinks just.
Legal principles established
#- Rule 5(2)(b) of the Court of Appeal Rules has no application to an application for extension of time to file an appeal; only Rule 4 falls for consideration.
- The discretion under Rule 4 is unfettered and does not require establishment of 'sufficient reasons'; no minimum or maximum period of delay is prescribed, but any delay must be satisfactorily explained.
- A plausible and satisfactory explanation for delay is the key that unlocks the court's discretionary power under Rule 4.
- An arguable appeal need not be one that must succeed, but one that warrants the opposite party's response and the Court's interrogation; however, arguability alone does not guarantee the relief.
Court orders
#- 1.Rule 5(2)(b) struck out as cited out of context
- 2.The application for extension of time dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Kisumu H.C Succession Cause No. 1021 of 2014
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time), invoked by Notice of Motion dated 8th July 2020
Relief refused
#Extension of time to lodge an appeal against the High Court judgment of 29th November 2018
The applicant satisfied only one Rule 4 factor (arguability); the explanations for the delay of one year, six months and ten days were unsubstantiated and not plausible
Costs
The application is dismissed with costs to the respondent.
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.
Rule 5(2)(b) has been cited out of context as it does not fall for consideration in an application of this nature. It is accordingly struck out. What falls for consideration herein is only Rule 4 of the Courts Rules.
A plausible and satisfactory explanation for a delay is the key that unlocks the court’s flow of discretionary power.
an arguable appeal is not one that must necessarily succeed but is one which ought to be argued fully before court
since the applicant has only succeeded on establishing one factor namely, that the intended appeal is arguable, the application is not sustainable. It is accordingly dismissed with costs to the respondent.
Issues in the judgment
#The judgment states the High Court judgment was delivered on 28th November, 2018 in the body, while the heading says dated 29th November 2018.
The judgment states the application was filed on 8th June, 2020 when computing the period of delay, whereas the Notice of Motion is dated 8th July, 2020.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Willis Oneko Opiata v Fredrick Omondi Wera [2021] KECA 949 (KLR)", Case Analysis (2021). Civil Application No. 75 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/949/eng@2021-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.