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Court of AppealAllowedCivil Application E238 of 2025

Olembo & another v Chege

Court of Appeal of Kenya
19 December 2025
1,766 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a single-Judge ruling of the Court of Appeal at Nairobi by F Sichale JA on a motion dated 11 April 2025 under Rule 4 of the Court of Appeal Rules 2010, seeking extension of time to file and serve a Record of Appeal in an intended appeal from the judgment of Njagi J in Nairobi High Court Civil Appeal No. 497 of 2018 delivered on 19 May 2023. The applicants, Alex Roy Olembo and Stephen Owino, filed and served a Notice of Appeal within time, but the Record of Appeal was never validly filed because a former associate of their advocates' firm, entrusted with the filing, received the filing fees via M-pesa but failed to remit them to the court, despite having lodged the Record. The fraud was discovered during a January 2025 review of the CTS portal and reported to police as stealing by servant on 26 February 2025. The respondent opposed, contending the applicants had slumbered for over two years and that the delay in moving the court after discovery was itself unexplained. Applying the settled Rule 4 factors from Leo Sila Mutiso v Rose Hellen Wangari Mwangi as restated in Patel v Waweru, the Judge held the delay of almost two years was not inordinate in the circumstances, the explanation was reasonable and largely uncontroverted, and the applicants would be ousted from the seat of justice if refused. Declining to assess arguability sitting as a Single Judge, the Judge allowed the motion, directing filing within 30 days failing which the orders would stand vacated, with costs of the motion abiding the outcome of the intended appeal. The decision turns on the principle that mistakes of counsel should not be visited upon an innocent litigant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants should be granted extension of time to file and serve the Record of Appeal under Rule 4
  2. 2.Whether the delay of almost two years was inordinate and sufficiently explained
  3. 3.Whether the intended appeal is arguable
  4. 4.Whether the respondent would suffer prejudice if the extension is granted

Key legal issues

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01

Length of delay

Holding

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.

Reasoning

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.

p. 3
02

Reason for the delay

Holding

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.

Reasoning

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.

p. 3
03

Arguability of the intended appeal

Holding

The single Judge declined to determine arguability, holding he could not do so sitting as a Single Judge.

Reasoning

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.

p. 4
04

Prejudice to the respondent

Holding

The applicants would suffer greater prejudice if the motion were refused, as they would be ousted from the seat of justice.

Reasoning

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

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  • 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

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  1. 1.The applicants' motion dated 11th April 2025 is allowed as prayed
  2. 2.Time is extended for the applicants to file the Record of Appeal
  3. 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. 4.The costs of the motion shall abide the outcome of the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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.
p. 4disposition - extension of time granted
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.
final orders - conditional timeline
it is trite law that mistakes of counsel should not be visited upon an innocent litigant.
p. 4mistake of counsel
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.
p. 2Rule 4 discretion

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, "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.