Nyakongo v Kenya Forestry Research Institute (KEFRI) (Cause E018 of 2024) [2025] KEELRC 2000 (KLR)
The bottom line
#A Kisumu court refused to let a losing party appeal late because his hospitalization excuse was contradicted by his own medical records.
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's notice of motion dated 21st May, 2025 seeking leave to file an appeal out of time is merited
Key legal issues
#Whether the applicant gave a sustainable justification for the delay in filing a notice of appeal
The application was dismissed because the alleged hospitalization was not demonstrated to be a bar to giving instructions; the medical letter showed a pre-existing outpatient condition, no admission, and no incapacitation
The court found the letter of 5th March 2025 contradicted the applicant's sworn claim of hospitalization, showing he attended JOOTRH as an outpatient for pre-existing fracture and hypertension, was recommended two weeks' bed rest, and went home. Bed rest did not preclude a phone call or a home visit by counsel to give instructions. The respondent had also been paid the decretal sum on 11th June 2025, weakening the applicant's case.
Whether the High Court/ELRC is the proper forum to grant extension of time for an intended appeal to the Court of Appeal
The court observed that although the law appears to sanction the application, the appropriate court is the one with jurisdiction to entertain the appeal, and the applicant could have invoked the Court of Appeal's own Rule 4 jurisdiction
The court reviewed Section 7 of the Appellate Jurisdiction Act, Section 95 of the Civil Procedure Act and Order 50 Rule 6 CPR, noting they confer jurisdiction but are reticent on circumstances for exercise. It questioned why the applicant sought extension from this court when the Court of Appeal has similar powers under its Rules, and asked rhetorically whether such an extension would bind the Court of Appeal.
Legal principles established
#- The factors governing extension of time are the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent, considered in the totality of the circumstances
- The most appropriate court to determine whether or not to extend time for lodging an appeal is the court with jurisdiction to entertain such appeal
Court orders
#- 1.The applicant's Notice of Motion dated 21st May, 2025 seeking leave to file an appeal out of time is dismissed
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act, Section 95 of the Civil Procedure Act, Order 50 Rule 6 of the Civil Procedure Rules, 2010
Relief refused
#Leave to file an appeal out of time against the judgment delivered on 4th March, 2025
The delay was not inordinate but no sustainable justification was given; the alleged hospitalization was contradicted by the medical letter, which showed the applicant was not admitted and his indisposition did not prevent him from instructing counsel
Costs of the application in the cause
The application having been dismissed, each party was ordered to bear their own costs
Costs
Parties shall bear their own costs.
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.
Flowing from the foregoing, it is discernible that the applicant's Notice of Motion dated May 21, 2025 is for dismissal and it is accordingly dismissed.
Parties shall bear own costs.
although the delay is not exceedingly inordinate, the applicant has not provided any sustainable justification for the delay.
The letter dated 5th March, 2025 contradicted the applicant's Supporting Afidavit that he was hospitalized. It reveals that the applicant was not truthful as he was not hospitalized
it is discernible that the most appropriate court to make the determination as to whether or not to extend time for the lodgement of an appeal is the court with jurisdiction to entertain such appeal.
Issues in the judgment
#Paragraph numbering repeats: two separate passages are both numbered '28', one quoting Njuguna v Magichu and one quoting Karny Zaharya
The court doubts the propriety of the very jurisdiction it exercises, yet proceeds to determine the application on its merits
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyakongo v Kenya Forestry Research Institute (KEFRI) (Cause E018 of 2024) [2025] KEELRC 2000 (KLR)", Case Analysis (2025). Kisumu ELRC No. E018 of 2024 (arising from). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2000/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.