Pere v Osoi (Civil Appeal (Application) 008 of 2019) [2025] KECA 1417 (KLR)
The bottom line
#The Court of Appeal confirmed that if you miss the 30-day deadline to restore a dismissed appeal, it stays dismissed—no second chances.
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 applicant should be granted extension of time to file an application for reinstatement of the appeal dismissed on 5th February 2025
- 2.Whether the restoration application filed out of the 30-day period under rule 105(3) can be saved by resort to Rule 4 extension of time
Key legal issues
#Whether an out-of-time restoration application can be cured by an extension of time under Rule 4
No. The 30-day period in rule 105(3) is a strict cut-off that cannot be extended by resort to Rule 4.
Rule 105 contains an express self-contained mechanism for restoring a dismissed appeal, including a 30-day time limit for a party served with notice. The limit protects the opposite party, who honoured the hearing notice, from indefinite prejudice from re-opening closed litigation. The Rules Committee could not have intended a defaulting party to circumvent that limit through Rule 4; the 30 days is an exceptional indulgence, strictly limited and not amenable to extension.
Consequence of non-appearance at the hearing of an appeal despite service of notice
Dismissal of the appeal is the normal consequence; restoration is exceptional and requires sufficient cause shown on evidence within the strict 30-day window.
Appellate practice rests on parties appearing through counsel to persuade the court orally. Notice of hearing safeguards the right to be heard; an appellant served with notice who fails to attend forfeits the hearing, and the appeal is dismissed under rule 105(1). The proviso allowing restoration is a qualification to finality, granted only on demonstrated sufficient cause, and its strict time limit accounts for the prejudice to the diligent opposite party.
Legal principles established
#- A party who fails to appear at the hearing of an appeal and also fails to apply for restoration within the stipulated 30 days cannot resort to Rule 4 to seek extension of time.
- The 30-day restoration period under rule 105(3) is strictly limited and not extendable.
- Restoration of a dismissed appeal is exceptional and must rest on sufficient cause, on principle and evidence.
Court orders
#- 1.Prayer for extension of time to file the restoration application disallowed; the application dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal (dismissed for non-attendance on 5th February 2025, Warsame, Mativo & Gachoka, JJ.A)
- Not stated
- Jurisdiction invoked
- Rule 105 of the Court of Appeal Rules (restoration of dismissed appeal) and Rule 4 (extension of time), invoked by the applicant's motion
Relief refused
#Extension of time to file the reinstatement/review application
The 30-day window in rule 105(3) for restoration is strictly limited and not amenable to extension; the applicant knew of the hearing date and filed hopelessly out of time
Review and setting aside of the dismissal order of 5th February 2025 and reinstatement of the appeal
Consequential on the refusal of extension of time; the restoration application was time-barred
Costs
The application is dismissed with costs (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.
it cannot have been the intention of the Rules Committee that a party who fails to appear at the hearing of an appeal and the fails to apply to restore the duly dismissed appeal within the stipulated time can then resort to Rule 4 to seek extension of time.
My view is that the 30 days period is an exceptional indulgence that is strictly limited and not amenable to extension.
The person seeking indulgence must show that he was prevented by some suficient cause from appearing when the appeal was called on for hearing. It is a discretion exercisable on principle, and based on evidence.
the prayer of extension for time is untenable and I disallow it. The same is dismissed with costs.
Issues in the judgment
#The judgment does not state the case title, appeal number, or the name of the respondent; the parties and appeal number cannot be fully identified from the text supplied.
The court's own procedural history is the only 'decision below' recorded: an earlier bench (Warsame, Mativo & Gachoka, JJ.A) dismissed the appeal, while this ruling by Kiage, JA was delivered at Nakuru; the coram of the dismissal differs from the single judge deciding the restoration application.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kariuki v Chief Land Registrar & 6 others (Petition 30 of 2013) [2026] KEELC 5299 (KLR)[2026] KEELC 5299 (KLR)18 Aug 2026
Cite this brief
#Cite this brief
Caselaw, "Pere v Osoi (Civil Appeal (Application) 008 of 2019) [2025] KECA 1417 (KLR)", Case Analysis (2025). Not stated in the judgment text supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1417/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.