Olembo & another v Chege
The bottom line
#Kenya's Court of Appeal gave two litigants a second chance to file their appeal, ruling that a lawyer's mistake shouldn't punish the client.
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 applicants should be granted extension of time to file and serve the Record of Appeal under Rule 4
- 2.Whether the delay of almost two years was inordinate and sufficiently explained
- 3.Whether the intended appeal is arguable
- 4.Whether the respondent would suffer prejudice if the extension is granted
Key legal issues
#Length of delay
A delay of almost two years from judgment was not inordinate in the circumstances, since the Notice of Appeal was filed and served within time.
The judgment was delivered on 19 May 2023; a Notice of Appeal was filed on 22 May 2023 and served on 31 May 2023, both within time, so the respondent was always aware of the intention to appeal. The application was filed on 11 April 2025, a delay of almost two years, which the single Judge did not consider inordinate given the circumstances.
Reason for the delay
The failure of a former associate to remit filing fees after receiving them, leaving the lodged Record of Appeal unpaid, was a reasonable and largely uncontroverted explanation.
The matter had been assigned to an associate who assured the instructing counsel the Record was ready; filing fees were transferred via M-pesa but never remitted to court. The Record had been lodged but not paid for. The explanation was corroborated by a police OB report for stealing by servant and remained largely uncontroverted.
Arguability of the intended appeal
The single Judge declined to determine arguability, holding he could not do so sitting as a Single Judge.
Although arguability is one of the Rule 4 considerations, the Judge held that he could not make a determination on the arguability of the intended appeal while sitting as a Single Judge and therefore did not delve into that issue, resting the decision on the other factors.
Prejudice to the respondent
The applicants would suffer greater prejudice if the motion were refused, as they would be ousted from the seat of justice.
Weighing prejudice, the Judge was satisfied that refusing the extension would completely shut the applicants out of appellate recourse, whereas the respondent had long been aware of the intention to appeal through the timely served Notice of Appeal.
Legal principles established
#- In deciding whether to extend time under Rule 4, the Court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- Mistakes of counsel should not be visited upon an innocent litigant.
Court orders
#- 1.The applicants' motion dated 11th April 2025 is allowed as prayed
- 2.Time is extended for the applicants to file the Record of Appeal
- 3.The applicants shall file the intended appeal within 30 days from the date of the ruling, failing which the orders shall stand vacated
- 4.The costs of the motion shall abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi High Court Civil Appeal No. 497 of 2018
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules 2010
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.
Accordingly, the applicants’ motion dated 11th April 2025, is merited and the same is hereby allowed as prayed.
The applicants shall proceed to file the intended appeal within a period of 30 days from the date of this ruling, failure to which these orders shall stand vacated.
it is trite law that mistakes of counsel should not be visited upon an innocent litigant.
The Court has wide and unfettered discretion in deciding whether to extend time or not. However, in exercising its discretion, the Court should do so judiciously.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olembo & another v Chege", Case Analysis (2025). Civil Application E238 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2311/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.