Boro v Registered Trustee of Lady Muriel Jex Blake Memorial Garden & another
The bottom line
#Kenya's Court of Appeal allowed a four-year appeal delay, accepting mental illness hospitalisation as a valid reason for missing filing 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 laid a basis for the exercise of the Court's discretion under Rule 4 to extend time to file and serve the memorandum and record of appeal out of time
Key legal issues
#Whether the applicant's four-year delay in instituting the appeal was satisfactorily explained
Yes - the medical evidence of the applicant's mental health condition and hospitalisation from August 2020 constituted a plausible explanation for the inaction over the four years.
The court weighed the Rule 4 factors: the delay was approximately four years, but the applicant exhibited a medical report from Dr. Gitonga showing admission at Mathari National Teaching & Referral Hospital on 4th August 2020 and ongoing outpatient psychotherapeutic management through 2024. Although the exact duration of admission was unclear, the court found the explanation for inaction on account of the applicant's mental state plausible, and exercised its discretion in his favour despite empathy with the respondent.
Legal principles established
#- The Court's discretion under Rule 4 to extend time is unfettered but must be exercised judicially, guided by relevant factors including length of and reason for delay, chances of the appeal succeeding, and prejudice to the respondent.
- Extension of time is an equitable remedy, not a right; the applicant bears the burden of laying a basis to the satisfaction of the court, and delay must be explained.
Court orders
#- 1.Prayers 2 and 3 of the application dated 4th June 2024 granted - extension of time to file the appeal
- 2.Applicant granted thirty (30) days from delivery of the ruling to file and serve his memorandum and record of appeal
- 3.Failing compliance, the Notice of Appeal dated 1st July 2020 and lodged on 2nd July 2020 shall be deemed withdrawn without further ado
- 4.Costs of the 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 of Kenya at Nairobi
- ELC Cause No. 46 of 2009 (consolidated with ELC suit No. 296 of 2009)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, invoking the Constitution of Kenya and the Appellate Jurisdiction Act
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.
Undoubtedly, the Court has unfettered discretion under Rule 4 of the Court of Appeal Rules to extend time. However, that discretion must be exercised judicially.
extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court
Consequently, I grant prayers 2 and 3 of the application dated 4th June 2024. The applicant has thirty (30) days from the date of delivery of this ruling to file and serve his memorandum and record of appeal
Costs of the application shall abide the outcome of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boro v Registered Trustee of Lady Muriel Jex Blake Memorial Garden & another", Case Analysis (2024). Civil Application E289 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1932/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.