Onjak v Ombonya & 2 others
The bottom line
#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 has demonstrated sufficient cause to warrant an extension of time to file an appeal.
- 2.Who bears the Costs of the application?
Key legal issues
#Whether the delay of approximately five months in filing the appeal was inordinate
A delay of five months is not inordinate so as to shut the Applicant out of the courtroom, following Sundowner Lodge Ltd where a 4-month delay was held not inordinate.
The court measured the delay from judgment on 22nd October 2025 to the application of 11th March 2026, roughly five months. Relying on the Supreme Court's observation in Sundowner Lodge that four months is not inordinate, the court found the delay within tolerable limits and proceeded to consider the explanation rather than dismissing outright.
Whether the illness and inaction of the applicant's former advocate constituted sufficient cause
Yes - the court took a holistic view, holding that a layperson who entrusted the matter to counsel and acted promptly on discovering the oversight should not be shut out, even absent medical proof of the illness.
Although the Respondents argued no medical evidence proved counsel's incapacity, the court held that the failure to attach medical proof was a procedural lapse. Balancing procedural technicalities against substantive justice under Article 159(2)(d), and citing Belinda Murai and Philip Chemwolo, it declined to dismiss the application solely on account of counsel's illness or inaction.
Whether the intended appeal is arguable
Yes - the eleven grounds of appeal, touching on the magistrate's jurisdiction to nullify a title derived from a confirmed grant, Section 26(1)(b) of the Land Registration Act, adverse possession procedure, limitation and res judicata, are triable and substantial.
Guided by Kenya Commercial Bank Ltd v Nicholas Ombija, the court held an arguable appeal need not necessarily succeed. Examining the annexed Memorandum of Appeal, it found eleven detailed grounds raising fundamental issues of law and fact going to the core of the subordinate court's judicial authority and the validity of registered land titles, deserving a full appellate hearing.
Prejudice to the Respondents if leave is granted
Delay in enjoying the fruits of judgment is compensable by way of costs.
The Respondents deponed that granting leave would delay their enjoyment of the judgment. The court held such prejudice is compensable by costs, and took cognizance that the right to appeal is a fundamental right under Article 50 of the Constitution as part of the right to a fair trial.
Legal principles established
#- An appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
- Blunders of counsel ought not to be visited upon an innocent litigant where substantive justice can still be achieved.
- An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the Court.
Court orders
#- 1.Leave granted to the Applicant to lodge and serve his Memorandum of Appeal out of time.
- 2.The Applicant shall file and serve the Memorandum of Appeal within fourteen (14) days from the date of the Ruling.
- 3.Failure to comply with the filing order, leave shall automatically terminate on the 15th day.
- 4.Costs of the Application to the Respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court at Siaya (trial court)
- Siaya CM ELC Case No. 70 of 2018
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act; Section 16A of the Environment and Land Court Act; Order 50 Rule 6 of the Civil Procedure Rules
Relief refused
#Prayer that costs of the application abide the outcome of the intended appeal
Court instead awarded costs to the Respondents notwithstanding allowing the application
Prayer that the Memorandum of Appeal be deemed as duly filed upon payment of requisite fees
Court granted leave with a 14-day filing timeline instead of deeming the memorandum filed
Costs
The costs of this Application to the Respondents.
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 Applicant’s Notice of Motion dated 11th March, 2026, is hereby allowed on the following terms:
Leave is hereby granted to the Applicant to lodge and serve his Memorandum of Appeal out of time.
The Applicant shall file and serve the Memorandum of Appeal within fourteen (14) days from the date of this Ruling.
The costs of this Application to the Respondents.
this Court finds that a delay of five (5) months is not inordinate so as to shut the Applicant out of the court room.
this Court declines to dismiss the Application solely on account of the advocate's illness or inaction.
An “arguable” appeal is not one which must necessarily succeed, but one which ought to be argued fully before the Court.”
the right to appeal is a fundamental right recognized under Article 50 of the Constitution as part of the right to a fair trial.
Issues in the judgment
#Conflicting dates for the trial court judgment
Respondents' affidavit refers to judgment delivered on 23rd October 2025
Trial case number cited inconsistently as CM ELC and MC ELC
Constitution articles misattributed to the Civil Procedure Rules
Grounds state applicant was 'satisfied' with the judgment yet sought to appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onjak v Ombonya & 2 others", Case Analysis (2026). Environment and Land Miscellaneous Case E008 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5913/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.