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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application (unnumbered on the face of the ruling; notice of motion dated 28th May 2025)· [2025] KECA 2053 (KLR)

Benjamin Sambai v David Kiptanui Keter

Court of Appeal of Kenya
2 December 2025
640 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a diabetic litigant more time to file his appeal, showing courts will excuse missed deadlines when delay is genuinely explained.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nakuru (M. Warsame, JA) on a notice of motion dated 28th May 2025 by Benjamin Sambai seeking leave to appeal out of time against a judgment of the Environment and Land Court delivered on 2nd December 2024. The application was unopposed. The applicant explained that his advocate requested typed proceedings timeously in December 2024, received them on 2nd April 2025 with a certificate of delay issued on 4th April 2025, but that he was personally unable to instruct counsel to file the record of appeal in April and May 2025 owing to a prolonged battle with type 2 diabetes, supported by medical records from Moi Teaching and Referral Hospital. The court restated the settled rule 4 factors - length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent - and explained the rule 84(1) 60-day timeline and the certificate-of-delay exemption. Noting that the record ought to have been filed by 1st June 2025 and that the application was therefore technically unnecessary, the court nonetheless invoked the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act, found the draft memorandum of appeal arguable, and exercised its discretion in the applicant's favour. The record of appeal was to be filed within 14 days, with no orders as to costs.

Key legal issues

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01

Applicable principles for extension of time under rule 4

Holding

The court applies the settled factors: length of delay, reason for delay, chances of the appeal succeeding, and degree of prejudice to the respondent.

Reasoning

The court restated the classic rule 4 test as crystallised in Leo Sila Mutiso vs. Hellen Wangariri Mwangi. The discretion is unfettered but judicial. The applicant explained the delay through illness (diabetes) evidenced by medical records from Moi Teaching and Referral Hospital, and the application was unopposed, so no prejudice was demonstrated by any respondent.

p. 2
02

Whether the extension was in fact necessary given the computation of time

Holding

By the date the application was filed, the record of appeal was already late; the applicant and his advocates had miscalculated time, but the court still exercised discretion in his favour.

Reasoning

The court observed that the record ought to have been filed by 1st June 2025 and that the application filed on 28th May 2025 was, strictly, unnecessary. However, applying the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act, and noting the applicant's ignorance or uncertainty about time computation and an arguable draft memorandum of appeal, the judge extended time and allowed filing within 14 days.

p. 2

Legal principles established

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  • The grant of extension of time under rule 4 is discretionary but judicial, and is guided by the length of delay, reason for delay, chances of the appeal succeeding and prejudice to the respondent.
  • Under rule 84(1), a record of appeal must be filed within 60 days of lodging the notice of appeal, but where an application for typed proceedings is made within 30 days of judgment, the time taken to compile proceedings is exempted and certified by a certificate of delay.
  • Sections 3A and 3B of the Appellate Jurisdiction Act enshrine the overriding objective, empowering the court to dispense justice with greater latitude even where a party has miscalculated time.

Court orders

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  1. 1.Extension of time granted; the applicant directed to file the record of appeal within 14 days
  2. 2.No orders as to costs
On appeal from
Environment and Land Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (2010), reinforced by sections 3A and 3B of the Appellate Jurisdiction Act (inherent/overriding objective jurisdiction)

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, "Benjamin Sambai v David Kiptanui Keter", Case Analysis (2025). Civil Application (unnumbered on the face of the ruling; notice of motion dated 28th May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2053/eng@2025-12-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.