Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal (Application) E282 of 2023

Banareri (Legal Representative of the Estate of Sebastiano Nyandwar Ondima (Deceased)) v Okondo

Court of Appeal
25 September 2026
1,561 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal excused a 60-day filing delay caused by a lawyer's mistake, allowing the land dispute appeal to proceed.

What this practically means

#

Executive summary

#
This is a single-judge ruling of the Court of Appeal at Kisumu (Ongaya, JA) on a notice of motion dated 20th February 2026 seeking extension of time to file and serve a record of appeal against the judgment of the Environment & Land Court at Kisii (Munyao, J.) dated 28th September 2023 in ELC Case No. 128 of 2009. The notice of appeal was filed and served timeously in October 2023, and certified proceedings were requested promptly and supplied on 24th January 2025. The record of appeal, however, was filed on 23rd May 2025, roughly 60 days past the 24th March 2025 deadline, owing to what counsel described as inadvertence and an office mix-up. The respondent opposed, alleging inordinate, unexplained delay and indolence, noting the applicant only moved the court eight months after the respondent filed an application to strike out the appeal. Applying the Leo Sila Mutiso parameters and the Supreme Court's guidance in Babubhai Bhangwanji Amba Madhwani that mistakes of counsel should not be visited on litigants where diligence is shown, the court found the delay genuinely attributable to counsel's inadvertence, not applicant indolence, and held any prejudice compensable by costs. The application was allowed: time was enlarged, the record of appeal dated 15th March 2025 was deemed duly filed and served, and costs of the application were ordered to abide the outcome of the appeal.

Questions the Court framed

#

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

  1. 1.Whether the 60-day delay in filing and serving the record of appeal should be excused and time enlarged under Rule 4
  2. 2.Whether the delay was attributable to counsel's inadvertence rather than the applicant's indolence
  3. 3.Whether the respondent would suffer prejudice if the extension is granted

Key legal issues

#
01

Whether counsel's inadvertence constitutes sufficient reason for extension of time

Holding

Yes, where the delay is genuine inadvertence and the applicant took all other timely steps; the mistake is not mere indolence to be visited on the applicant.

Reasoning

The court found the 60-day delay was explained as counsel's inadvertence, unrebutted by any other material. The applicant had timely filed and served the notice of appeal and requested certified proceedings. Citing the Supreme Court in Babubhai Bhangwanji Amba Madhwani, the court noted mistakes of counsel ought not be visited on litigants, but diligence must be shown, which was demonstrated here.

p. 3
02

Whether the respondent suffered prejudice

Holding

Any prejudice is compensable by an order of costs.

Reasoning

The court accepted the applicant's submission that no substantial prejudice was demonstrated; the record of appeal had already been filed and served, and any prejudice to the respondent could be sufficiently provided for by way of costs.

p. 3

Legal principles established

#
  • Extension of time under Rule 4 is discretionary and governed by the Leo Sila Mutiso parameters: length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent.
  • A genuine mistake of counsel, not amounting to indolence, should not be visited upon the litigant where the party has otherwise diligently pursued the appeal.

Court orders

#
  1. 1.Leave granted for enlargement of time for filing and serving the record of appeal dated 15th March, 2025
  2. 2.The record of appeal dated 15th March, 2025 deemed duly filed and served
  3. 3.Costs of the application to abide the outcome of the appeal

The bench

#

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

majority

Wrote the judgment

On appeal from
Environment & Land Court at Kisii
ELC Case No. 128 of 2009
Jurisdiction invoked
Rules 4 and 43 of the Court of Appeal Rules, 2022 and Sections 3A and 3B of the Appellate Jurisdiction Act

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.

The upshot is that the delay is excusable. The applicant is granted leave for enlargement of time for filing and serving the record of appeal dated 15th March, 2025 which is hereby deemed duly filed and served, accordingly.
p. 3Final orders - extension of time granted
The inadvertence by counsel therefore appears to have been a genuine mistake by counsel and not mere indolence that can validly be visited upon the applicant.
p. 3Counsel's mistake not visited on litigant
It is not enough for a party to simply blame the former advocate for all manner of transgressions.
p. 3Limits of the counsel's-mistake principle (quoting Supreme Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Banareri (Legal Representative of the Estate of Sebastiano Nyandwar Ondima (Deceased)) v Okondo", Case Analysis (2026). Civil Appeal (Application) E282 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1947/eng@2026-09-25

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