Githinji v Mugo & another (Civil Application E064 of 2024) [2024] KECA 1723 (KLR)
The bottom line
#Kenya's Court of Appeal gave a late appellant more time to appeal after a failed review attempt, showing courts prioritise justice over strict deadlines.
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 offered a reasonable explanation for the delay in lodging the notice and record of appeal
- 2.Whether the intended appeal has chances of success
- 3.Whether the respondents would suffer prejudice if extension of time is granted
- 4.Whether it is in the interest of justice to extend time notwithstanding that the applicant had earlier pursued a review of the same judgment
Key legal issues
#Factors governing extension of time under rule 4 of the Court of Appeal Rules
The court applies the well-settled factors: length and reason for delay, chances of the appeal succeeding, prejudice to the respondent, and other relevant considerations, guided by Article 159(2)(d).
The court adopted the Fakir Mohamed factors as restated by the Supreme Court in Mombasa County Government v Kenya Ferry Services. It found the delay explained: the applicant first pursued a review which was dismissed, then filed this application 60 days later. No prejudice to the respondents was shown, and the memorandum of appeal suggested the appeal was not idle. Substantive justice was preferred over procedural technicality.
Effect of a defective prayer for extension of time
A want of form in the drafting of the prayer did not defeat the application, since the applicant had invoked rule 4 and the court construed the prayer as one for extension of time.
Order No. 1 of the notice of motion was incomplete and did not disclose what was sought regarding the time for lodging the notice and record of appeal. The judge nonetheless treated the application, brought under rule 4, as seeking extension of time, invoking Article 159(2)(b) and the non-technicality principle of Article 159(2)(d) of the Constitution.
Whether review of a judgment bars a subsequent appeal against that judgment
The court declined to determine the respondents' objection that an appeal could not lie after review, holding it was not before it and could be raised at the hearing of the appeal.
The respondents deposed that having opted for review, the applicant could not appeal the same judgment. The single judge found that this issue did not arise for determination on a rule 4 extension application and deferred it, preserving the respondents' opportunity to raise it later. This point therefore remains open and was not decided.
Legal principles established
#- The discretion to extend time under rule 4 is unfettered but equitable, and is not automatic; the applicant bears the burden of explaining the delay to the satisfaction of the court.
- Pursuing a review before filing an appeal does not, by itself, defeat an application for extension of time to appeal.
Court orders
#- 1.The application dated 4th July, 2024 has merit and is allowed
- 2.The applicant is granted 14 days within which to file the notice of appeal, and 7 days to serve it upon the respondents from the date of filing
- 3.The applicant has 30 days to file the record of appeal from the date hereof, and 14 days thereafter to serve it upon the respondents
- 4.The costs of this application shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court, Nyeri
- Civil Suit No. 634 of 2014
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time), with Article 159(2)(b) and 159(2)(d) of the Constitution of Kenya, 2010 invoked
Relief refused
#Objection that an appeal cannot lie against a judgment already subjected to review
The issue of the validity of an appeal against a judgment after review was not before the single judge and can be raised later by the respondents
Costs
The costs of this application shall abide the outcome of the appeal.
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 two decisions above are clear that the power to extent time to file notice or record of appeal is unfettered, however, it is an equitable right and is not automatic.
I find the explanation given reasonable and acceptable.
Considering the memorandum of appeal, I am satisfied that the appeal has a likelihood of success, it is not idle.
The application dated 4th July, 2024 has merit and is allowed;
The applicant is granted 14 days within which to file the notice of appeal, and 7 days to serve it upon the respondents from the date of filing;
The costs of this application shall abide the outcome of the appeal.
Issues in the judgment
#The date of the ELC judgment is given inconsistently: 5th May 2023 in the prayer and 8th May 2023 elsewhere.
The length of the review-application delay is stated inconsistently: the review application is said to have been filed 70 days after judgment, yet the ruling describes it as filed 10 days late.
The case number of the application before the Court of Appeal is not stated in the judgment; the case title of the underlying suit parties is likewise not fully set out.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githinji v Mugo & another (Civil Application E064 of 2024) [2024] KECA 1723 (KLR)", Case Analysis (2024). Not stated in judgment (notice of motion dated 4th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1723/eng@2024-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.