Embu Gaturi Housing Co-op Society v Njenga & 2 others (Civil Application E089 of 2024) [2025] KECA 591 (KLR)
The bottom line
#Kenya's Court of Appeal gave a co-op society a fresh chance to file its appeal, ruling that court-caused delays cannot be blamed on the party seeking justice.
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 application for extension of time is res judicata in light of prior rulings in Civil Application No. 119 of 2018 and Civil Application No. 71 of 2018
- 2.Whether the applicant has satisfied the principles for extension of time to file a memorandum and record of appeal
- 3.Who should bear responsibility for the delay in filing the record of appeal
Key legal issues
#Whether the fresh application for extension of time was res judicata
The application is not res judicata because the earlier memorandum and record of appeal were struck out on a technicality - being filed out of time without leave - not on the merits.
The court reviewed the sequence of prior proceedings: the record of appeal in Civil Application No. 71 of 2018 was struck out on 12th April 2024 because it was filed out of time without leave, and the extension application in No. 119 of 2018 was dismissed on 23rd September 2021. Since the prior determinations turned on a technicality rather than a determination on the merits of the extension, the doctrine of res judicata did not bar the present application.
Attribution of the delay
The greater part of the delay was attributable to the Court's own backlog, not the applicant; only the period from 13th April 2017 to 9th April 2018 (about one year) could be laid at the applicant's door.
The court noted the extension application took three years to determine and the striking-out application took six years, delays attributable to the Court's shortage of Judges. The applicant's own culpable delay was only slightly below one year, and its explanation citing the pending challenge was reasonable and plausible. It would not be in the interest of justice to blame the applicant for the bulk of the delay.
Arguability of the intended appeal and prejudice
The memorandum of appeal raises arguable, non-frivolous grounds, and the prejudice to the respondents is the delay already incurred, which is not entirely attributable to the applicant.
Applying the Fakir Mohamed factors, the court found the grounds of appeal neither frivolous nor idle and deserving to be heard. The prejudice to the respondents was limited to delay at the preliminary stage of readying the record for hearing, a delay the court had already found could not for the most part be blamed on the applicant. Both factors favoured granting the extension.
Legal principles established
#- In determining whether to grant an extension of time, the Judge exercises an unfettered discretion so long as it is exercised judiciously based on sound principles, considering the period and reason for delay, arguability of the appeal, prejudice to the respondent and other relevant factors.
- Delay occasioned by the Court itself in hearing and determining applications cannot be visited upon the party seeking extension of time.
Court orders
#- 1.The application dated 6th September 2024 is allowed
- 2.The applicant is granted 30 days from the date of the ruling to file the memorandum of appeal
- 3.The applicant is granted 14 days thereafter to file and serve the record of appeal
- 4.Costs shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Embu
- Embu High Court Civil Appeal No. 22 of 2014
- Jurisdiction invoked
- Rules 4 and 49(4) of the Court of Appeal Rules
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 exercise of this court’s discretion under Rule 4 has followed a well beaten path since the stricture ‘suficient reason’ was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant.
It is clear from this events that the application for leave to extend time to filed the memorandum and record of appeal is not res judicata since it was dismissed on a technicality that it was filed out of time without leave.
I am satisfied that the application is merited. Accordingly, the application dated 6th September 2024 is allowed. The applicant granted 30 days from the date hereof to file and 14 days thereafter to file and serve the memorandum and record of appeal. Costs shall be in the appeal.
Issues in the judgment
#The judgment names the parties only by role; the actual names of the respondents do not appear, so the case title is reconstructed.
The application number for the present application is not stated, only the date; the memorandum of appeal is described as dated 6th September 2024 and the record as filed 9th April 2018 in a prior matter, creating slight ambiguity in dates recited.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Embu Gaturi Housing Co-op Society v Njenga & 2 others (Civil Application E089 of 2024) [2025] KECA 591 (KLR)", Case Analysis (2025). Civil Application No. Nyeri (unnumbered, dated 6th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/591/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.