Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtDismissedCivil Application 18 of 2020

George Kang’ethe Waruhiu v Esther Nyamweru Munene & another

Supreme Court of Kenya
6 August 2021
Martha Karambu KoomeM. K. KoomeMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
2,646 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Court dismissed extension of time because applicant failed to explain nearly 500-day delay.

What this practically means

#

The Supreme Court dismissed an application for more time to appeal. The applicant waited 495 days to ask for an extension, blaming his lawyer, a brief illness, and COVID-19. The court found he did not explain the entire delay, especially the first four months. Extension of time is a favor, not a right, and the applicant must show good reason for every day of delay.

Executive summary

#
This was an application by George Kang'ethe Waruhiu (the Applicant) seeking extension of time to file a Notice of Appeal against a Court of Appeal judgment delivered on 8th March 2019, or alternatively, that a Notice of Appeal filed out of time on 14th October 2019 be deemed properly filed. The Court of Appeal had set aside a High Court judgment that dismissed the Respondents' claim regarding a trust over land, and allowed the Respondents' claim. The Applicant's Notice of Appeal was due by 22nd March 2019, but he filed the present application 495 days later on 15th July 2020. The Applicant attributed the delay to an error by his former advocates, his illness (hospitalized 15th-17th July 2019), and the Covid-19 pandemic. The Respondents opposed the application, arguing the delay was undue and unexplained. The Supreme Court applied the principles from the Nick Salat Case, emphasizing that extension of time is an equitable remedy and the applicant must explain the entire period of delay. The Court found the Applicant's explanations unsatisfactory: he failed to show due diligence regarding the advocate's error, did not explain the period from 8th March to 14th July 2019, and the Covid-19 pandemic did not cause absolute closure of courts. The Court dismissed the application with costs to the Respondents.

Questions the Court framed

#

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

  1. 1.whether this Court should grant an extension of time for the Applicant to file a Notice of Appeal
  2. 2.if the answer is in the affirmative, should the Notice of Appeal filed on 14th October 2019 be deemed as duly filed and properly on record?

Key legal issues

#
01

Whether the Applicant satisfactorily explained the delay of 495 days in filing the application for extension of time.

Holding

The Applicant did not satisfactorily explain the delay. The explanations of advocate error, illness, and the Covid-19 pandemic were insufficient, particularly as the Applicant failed to account for the period from 8th March 2019 to 14th July 2019.

Reasoning

The Court applied the principles from the Nick Salat Case and the County Executive of Kisumu case, requiring an applicant to explain the entire period of delay. The Applicant's claim of advocate error lacked evidence of due diligence. The illness explanation only covered 15th-17th July 2019, leaving over four months unexplained. The Covid-19 pandemic did not cause absolute closure of courts, and the Applicant provided no evidence of being turned away from the registry. The cumulative delay was not justified.

p. 7

Legal principles established

#
  • Applicant must explain the entire period of delay, not just part of it.
  • Extension of time is an equitable remedy, not a right, available only to deserving parties.
  • Advocate error does not excuse delay unless the applicant shows due diligence.
  • COVID-19 pandemic does not automatically justify delay; courts were not entirely closed.
  • Applicant bears the burden of satisfying the court that time should be extended.

Court orders

#
  1. 1.The Notice of Motion dated 15th July 2020 is dismissed.
  2. 2.The Applicant shall bear the costs of the Respondents.

The bench

#

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

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Nairobi Civil Appeal No. 168 of 2013
Jurisdiction invoked
Rules 15(2), 32 and 36 of the Supreme Court Rules, 2020

Relief refused

#

extension of time to file a Notice of Appeal against the Judgment of the Court of Appeal delivered on 8th March 2019

The Applicant failed to satisfactorily explain the delay of 495 days, including the period between 8th March and 14th July 2019, and the explanations of advocate error, illness, and the Covid-19 pandemic were found insufficient.

p. 7

alternative prayer that the Notice of Appeal filed on 14th October 2019 be deemed duly filed and properly on record

The primary prayer for extension of time was refused, so this alternative prayer was not granted.

p. 7

Costs

The Applicant shall bear the costs of 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 upshot of the above finding is that we are inclined to disallow the application for extension of time with costs to the Respondents.
p. 7 Disposition of the application
Consequently, we make the following Orders: i. The Notice of Motion dated 15th July 2020 is dismissed. ii. The Applicant shall bear the costs of the Respondents.
p. 7 Final orders
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court
p. 6 Nature of extension of time
this Court has always emphasized the need for an Applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court
p. 7 Burden on applicant for extension of time

Key timeline

#
2019-03-08
Court of Appeal delivered judgment against the applicant.
2019-03-22
Deadline for filing Notice of Appeal expired.
2019-10-14
Applicant filed Notice of Appeal (out of time).
2020-07-15
Applicant filed application for extension of time (495 days late).
2023 (date not specified)
Supreme Court dismissed application with costs.

Practical implications

#
For lawyers

Explain every day of delay

When seeking extension of time, you must account for the entire period from the deadline to the application. Blaming a former advocate without evidence of your own diligence will not satisfy the court. Document all steps taken and gaps explained.

For businesses

Strict deadlines for appeals

Businesses involved in litigation must monitor appeal deadlines closely. A 495-day delay is fatal unless you can show compelling reasons for each day. Even COVID-19 does not automatically excuse lateness; you must prove you tried to file but were blocked.

For individuals

Don't rely on COVID-19 excuses

If you miss a court deadline, do not assume COVID-19 will save you. The court expects you to show you tried to file during the pandemic. Illness or lawyer errors also require proof that you acted diligently. The faster you act, the better your chances.

Frequently asked questions

#
What is an extension of time in Kenya?+

It is a court order allowing a party to file a document, like a Notice of Appeal, after the legal deadline has passed. The court grants it only if the applicant explains the entire delay and shows good cause. It is not automatic.

How long is an inordinate delay in Kenya?+

Any delay that is not properly explained can be considered inordinate. In this case, a 495-day delay was held to be inordinate because the applicant failed to account for the first four months. Even shorter delays may be fatal if unexplained.

Can COVID-19 excuse a late appeal in Kenya?+

Only if you prove that the court registry was truly closed and you could not file. The mere existence of the pandemic does not automatically justify delay. You must show specific dates when you tried to file and were turned away.

What happens if my lawyer misses a deadline in Kenya?+

You must show that you were diligent in following up with your lawyer. Simply blaming the lawyer is not enough. The court expects you to prove you acted promptly once you learned of the missed deadline. Otherwise, you bear the consequences.

Later judgments citing this (16)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "George Kang’ethe Waruhiu v Esther Nyamweru Munene & another", Case Analysis (2021). Civil Application 18 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/42/eng@2021-08-06

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