Carla (Suing as the Administrator and Personal Representative of the Estate of Rossi Renata (Deceased)) v Marelli & 2 others (Civil Application E019 of 2022) [2025] KECA 38 (KLR)
The bottom line
#The Court of Appeal dismissed an attempt to revive a stale appeal, confirming that litigants cannot blame their lawyers for years of inaction.
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 single Judge failed to take into account a relevant matter, applied a wrong principle, misapprehended the evidence, or was plainly wrong in declining to extend time for filing the Notice of Appeal and Record of Appeal
- 2.Whether the inordinate delay in applying for extension of time was sufficiently explained
- 3.Whether the mistakes of the applicant's former advocates should be visited upon the applicant
Key legal issues
#Test for interference by a full bench with a decision of a single Judge on a reference
The applicant must show the single Judge excluded a relevant matter, included an irrelevant one, applied a wrong principle, misapprehended the evidence or law, or that the decision is plainly wrong.
The court restated the principles from John Koyi Waluke v Moses Masika Wetangula: a single Judge exercising discretion under Rule 4 acts on behalf of the whole Court. The full bench interferes only on the established grounds or where the decision is plainly wrong and could not have been reached by a reasonable tribunal properly directing itself to the evidence and the law.
Whether delay was attributable to the applicant's advocates rather than the applicant
The delay in applying for extension of time could not be wholly attributed to the advocates, since the applicant knew she was out of time in July 2020 but only applied over two years later.
While the applicant blamed her former counsel's negligence and failure to inform her of the judgment, the court noted Odunga, JA's finding that she took no steps to regularise her position once aware in July 2020. The two-year-and-four-month delay in seeking extension of time was therefore inordinate and unexplained, and the single Judge's refusal to excuse it was judicious.
Sympathy versus law in exercising discretion
The court does not act on sympathy; justice must be administered in accordance with the law.
Counsel pleaded that the single Judge ought to have been more sympathetic to the applicant's predicament. The court endorsed the ruling that, even as the court seeks to do justice, it is a court of law and not mercy, bound by the law and the Constitution, citing Daniel Kimani Njihia v Francis Mwangi and Mehrunnissa v Mohamed Parvez.
Legal principles established
#- A full bench may interfere with a single Judge's discretionary decision only where the single Judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the evidence or the law, or was plainly wrong; it is not enough that the full bench would have reached a different result.
- A litigant bears responsibility to follow up their case and cannot simply blame advocates on record for all transgressions in the conduct of litigation.
- The maxim that mistakes of counsel should not be visited on a client carries a corollary that legal business must be conducted efficiently, and the applicant must sufficiently demonstrate that non-compliance was due to the advocate's fault.
Court orders
#- 1.The reference is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya (single Judge, Odunga, JA)
- Application under Rule 57(1)(b) of the Court of Appeal Rules for reference against ruling of 24th November 2023
- Jurisdiction invoked
- Rule 57(1)(b) of the Court of Appeal Rules (reference from decision of a single Judge)
Relief refused
#Extension of time to file Notice of Appeal and Record of Appeal
Inordinate delay of two years and four months was not sufficiently explained; the single Judge exercised his discretion judiciously
Costs
The reference is dismissed with costs to 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.
It is not enough, for example, to show the full Court that had it been sitting in place of the single Judge, it would have arrived at a difierent result.
In the circumstances, it is our view that there was inordinate delay that was not suficiently explained by the applicant. We are satisfied that the learned single Judge exercised his discretion judiciously, and this Court cannot therefore interfere with his determination.
Accordingly, this reference lacks merit and is hereby dismissed with costs to the respondents.
We appreciate that we are sworn to do justice but justice must be administered in accordance with the law.
Issues in the judgment
#The judgment inconsistently states the date of the trial court's judgment as 27th March 2020 in the opening paragraph and 27th May 2020 in counsel's submissions.
The description of the applicant's role is ambiguous: the applicant is described as dissatisfied with the decision, but the reference seeks to challenge the single Judge's refusal to extend time; the narrative also states the ruling was 'on an application filed by the Applicant and serve a Notice of Appeal', which is internally garbled.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Carla (Suing as the Administrator and Personal Representative of the Estate of Rossi Renata (Deceased)) v Marelli & 2 others (Civil Application E019 of 2022) [2025] KECA 38 (KLR)", Case Analysis (2025). Reference from the ruling of Odunga, JA dated 24th November 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/38/eng@2025-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.