Barasa & 2 others v Musundi & 2 others (Civil Application E015 of 2024) [2024] KECA 628 (KLR)
The bottom line
#Kenya's Court of Appeal refused to revive a lapsed succession appeal because the applicants gave no valid explanation for the delay.
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 applicants have laid a sufficient basis for the court to exercise its discretion under Rule 4 to grant leave to file a fresh notice of appeal and record of appeal out of time
- 2.Whether the reasons given for the delay in filing the record of appeal and in bringing the application were adequate
Key legal issues
#Exercise of discretion under Rule 4 to extend time
The application was dismissed because the applicants gave no explanation for the delay in filing the record of appeal or for bringing the application long after the notice of appeal was deemed withdrawn.
The court reaffirmed the Rule 4 threshold: reasons for the delay, that the delay not be inordinate, and arguability of the intended appeal. Judgment was delivered on 23rd July 2019 and the record of appeal was due by 4th July 2019 (as stated); the court had already ruled on 4th November 2022 that no record of appeal was filed. Discretion must be exercised judiciously, not out of pity or a desire to give one final chance, and the pendency of a review application did not excuse the delay since filing the appeal did not depend on its outcome.
Effect of failure to obey procedural rules
Court rules must prima facie be obeyed; extension of time requires material on which the court can exercise its discretion.
Relying on the Privy Council in Ratman v. Cumarasamy, the court held that a party in breach has no unqualified right to an extension of time, since the rules provide a timetable for the conduct of litigation. Material must be placed before the court justifying the exercise of its discretion, and none was offered here.
Legal principles established
#- An applicant under Rule 4 must give valid reasons for delay; without them the court has no jurisdiction to extend time, and the overriding objective cannot cure an unexplained delay.
- The overriding objective does not permit extension of time where the delay is inordinate or unexplained.
Court orders
#- 1.The application dated 31st January, 2024 was dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Succession Cause No. 12 of 2017
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2022 and Sections 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#Leave to file and serve a fresh notice of appeal and record of appeal out of time
No valid explanation was given for the delay; a prior notice of appeal had been deemed withdrawn and the court had already found no record of appeal was filed
Costs
The application was dismissed with costs to the respondent.
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.
Without a valid reason, this court has no jurisdiction to extend time.
Discretion cannot be exercised out of impulse or pity or the desire to give an applicant one final shot to prove its case no matter how compelling.
In the end I find that the instant application is incompetent and devoid of merit. I therefore order that the same be dismissed with costs.
Issues in the judgment
#The judgment states the record of appeal ought to have been filed by 4th July 2019, which precedes the stated judgment delivery date of 23rd July 2019 - an apparent internal chronological error.
The judgment refers to 'the record of record of appeal', an apparent typographical error.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barasa & 2 others v Musundi & 2 others (Civil Application E015 of 2024) [2024] KECA 628 (KLR)", Case Analysis (2024). Motion dated 31st January, 2024 (Court of Appeal, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/628/eng@2024-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.