Leipoi v Kesaika (The legal representative of the Estate of the late Koinasei ole Kitaika) (Civil Application E497 of 2024) [2025] KECA 1326 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend an eleven-month delay in filing an appeal, ruling that lack of money alone doesn't explain missing appeal deadlines.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an application for extension of time may properly be filed by an advocate who did not act for the party in the lower court (order 9 rule 9 objection)
- 2.Whether the applicant has given a reasonable explanation for the inordinate delay of about eleven months
- 3.Whether the intended appeal is arguable and whether the respondent would suffer prejudice if extension is granted
Key legal issues
#Whether order 9 rule 9 of the Civil Procedure Rules applies to filing an appeal in the Court of Appeal
It does not; an appeal is a commencement of new proceedings, so new counsel may come on record without a notice of change or leave
Following Tobias M. Wafubwa v Ben Butali, the court held that an appeal to an appellate court is not a continuation of the lower court proceedings but new proceedings governed by appellate rules, so parties may choose fresh counsel without order 9 rule 9 formalities. The respondent's competency objection therefore failed.
Whether the ~11-month delay was excusable
No; the delay was inordinate and inadequately explained, and financial hardship alone does not suffice
The impugned judgment was delivered on 2nd November 2023 and the application was filed on 30th September 2024, a delay of almost eleven months. The applicant gave no sufficient explanation; lack of resources was rejected since he could have filed a notice of appeal in person. Litigation is costly and litigants must bear attendant costs.
Whether the other Salat factors (arguability, prejudice, undue delay in bringing the application) favoured the applicant
Even considered, they did not assist the applicant; the intended appeal lacked good chances of success and litigation must come to an end
The court declined to reach the remaining Salat factors given the unexplained inordinate delay, but noted that even on a perusal of the impugned judgment and draft memorandum of appeal, the intended appeal was not persuasive. Prejudice to the respondent and the need for finality in litigation weighed against extension.
Legal principles established
#- Under the Court of Appeal rules, an advocate who did not act for a party in the lower court may be instructed to file an appeal before the Court of Appeal without order 9 rule 9 formalities, because an appeal is new proceedings
- Mere lack of financial resources is not a sufficient explanation for inordinate delay in filing an appeal
- Any delay in filing an appeal must be satisfactorily explained; a plausible and satisfactory explanation unlocks the court's discretion
Court orders
#- 1.The notice of motion dated 30th September 2024 seeking extension of time is 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
- Environment and Land Court at Kajiado
- Not stated
- Jurisdiction invoked
- Inherent discretionary jurisdiction of the Court of Appeal to extend time for filing and service of a notice of appeal under the Court of Appeal Rules, 2010
Relief refused
#Extension of time to file and serve notice of appeal out of time
The delay of almost eleven months was inordinate and unexplained; the applicant did not demonstrate lack of means prevented him from filing a notice of appeal in person; the intended appeal was not shown to be arguable and litigation must come to an end
Costs
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.
All in all, I find this application lacking in merit and dismiss it with costs to the respondent.
The underlying principles a court should consider in exercise of such discretion should include: a. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
A plausible and satisfactory explanation for delay is the key that unlocks the court’s fiow of discretionary favour.
under the rules of this court, an advocate who has not acted for a party in the lower court may be instructed to file an appeal before this Court as these are difierent proceedings
Issues in the judgment
#The judgment does not name the parties or give a case number; the applicant and respondent are referred to only generically, so the caseTitle and caseNumber are reconstructed from context
The coram shows only the President of the Court of Appeal signing a single-judge application ruling, without an express bench listing
The judgment refers to an appeal from the Chief Magistrates’ court decided by the ELC, but the appeal from the Chief Magistrate would ordinarily lie to the High Court; the court does not resolve this
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Leipoi v Kesaika (The legal representative of the Estate of the late Koinasei ole Kitaika) (Civil Application E497 of 2024) [2025] KECA 1326 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1326/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.