Ngeno & 13 others v Kenya Investment Authority (Civil Application 99 of 2016) [2025] KECA 528 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that claiming you were too poor to file an appeal on time is no excuse if you never used the court's fee-relief options.
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 full bench should interfere with the discretion of the single Judge who dismissed the applicants' rule 4 application for extension of time to file a notice of appeal and record of appeal out of time
Key legal issues
#Circumstances in which the full bench interferes with a single Judge's rule 4 discretion
The full bench will not interfere unless the single Judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended a point of law or fact, or the decision is plainly wrong; the applicants bore the burden of establishing such a breach.
The Court restated the principles in Kenya Canners Ltd v Titus Muiruri Doge and Fakir Mohammed: a reference is not an appeal, the single Judge exercises the full court's power, and interference is only on sound principles. The Court found no irrelevant or omitted consideration, no misapprehension, and nothing plainly wrong in the ruling, so the applicants failed to discharge their duty of justifying interference.
Adequacy of the applicants' explanation of financial constraints for the delay
Financial constraint was not a legitimate excuse because the applicants failed to resort to rule 120 (fee relief) or copy their bespeaking letter to the respondent to gain rule 84 benefit, and the money deposited sat in the advocate's account while further delay followed.
The Court noted the single Judge had correctly identified multiple stages of inaction: delay in collecting certified proceedings, delay in seeking fee assessment, non-payment into court, failure to seek Registrar's relief, and further delay after deposit. These omissions were unexplained, so the single Judge was entitled to find the delay inordinate and unexplained.
Legal principles established
#- A reference to the full bench is not an appeal; the full court interferes with a single Judge's rule 4 discretion only where the Judge took into account an irrelevant matter, failed to take into account a relevant one, misapprehended a point of law or fact, or the decision is plainly wrong.
- On a reference, the full bench does not re-decide whether the single Judge's conclusion was correct; it interferes only where the conclusion is one no reasonable tribunal could reach.
- An unexplained delay cannot be excused regardless of its length, and inaction in the absence of explanation is inferred to be deliberate; the certificate of delay is in practice prepared by the advocate, and its absence is not a bar to the exercise of rule 4 discretion.
Court orders
#- 1.The reference is dismissed with costs
- 2.It is so ordered (dated and delivered at Nairobi, 21st March 2025)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya (decision of a single Judge, Kiage, JA)
- Jurisdiction invoked
- Rule 57(1)(b) of the Court of Appeal Rules, 2022 - reference against a decision of a single Judge under rule 4
Relief refused
#Overturning of the single Judge's dismissal of the application for leave to file and serve a notice of appeal and record of appeal out of time
The applicants failed to show that the single Judge took into account an irrelevant matter, failed to take into account a relevant one, misapprehended a point of law or fact, or arrived at a plainly wrong decision
Costs
The reference is 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.
Accordingly, we find no merit in this reference which we hereby dismiss with costs.
A reference to the full court is not an appeal although it is in the nature of one and in exercising the discretion under rule 4, the single judge was exercising the power on behalf of the full court and his discretion would not therefore be easily upset except on sound principles
It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary and it is also well settled that in general the matters which the Court of Appeal takes into account in deciding whether to grant an extension are: first, the length of the delay; secondly the reason for the delay; thirdly, (possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.
The certificate of delay is in practice prepared by the concerned advocate and sent to the Deputy Registrar to verify and sign.
Issues in the judgment
#The judgment contains duplicated passages within the Penina Mongira quotation, restating the same principles twice verbatim within one block quote.
The affidavit chronology states a letter of 10th November 2016 seeking proceedings received on 21st July 2015, dates internally inconsistent (request after receipt).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngeno & 13 others v Kenya Investment Authority (Civil Application 99 of 2016) [2025] KECA 528 (KLR)", Case Analysis (2025). Civil Reference (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/528/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.