Ndiritu v Kinuthia (Civil Application E356 of 2024) [2025] KECA 781 (KLR)
The bottom line
#The Court of Appeal dismissed an attempt to revive a late appeal, confirming that filing a set-aside application in the High Court does not excuse delay in filing a notice of appeal in Kenya.
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 properly exercised her wide discretion under Rule 4 of the Court of Appeal Rules in declining to extend time to file a notice of appeal
- 2.Whether the single judge considered irrelevant factors, failed to consider relevant factors, misapprehended the law or facts, or arrived at a plainly wrong decision
Key legal issues
#Scope of review on a reference under Rule 57(1)(b)
The reference is not a rehearing; the full bench asks only whether the single judge considered irrelevant factors, ignored relevant ones, misapprehended law or facts, or was plainly wrong.
The court restated the classic Mbogo v Shah standard via Kenya Co-operative Creameries Ltd v Fims Ltd: a single judge's discretion is wide and unfettered but must be exercised upon reason, not capriciously. Once exercised, the full bench interferes only on demonstrated misdirection or manifest wrongness causing misjustice.
Whether pursuing a set-aside application in the High Court excuses delay in filing notice of appeal
No. Pursuing an application to set aside summary judgment in the High Court does not automatically render the delay in filing a notice of appeal excusable.
The applicant's counsel was present when the final summary judgment ruling was delivered on 13th May 2024 but no notice of appeal was filed for 56 days. The court held that the nature of a summary judgment means an applicant cannot rely on the mistaken belief that it was interlocutory, nor on parallel High Court applications, to explain the delay.
Application of the Rule 4 extension-of-time principles to the facts
The single judge correctly considered the length of delay (56 days, inordinate), the implausible explanation, and the prejudice to the respondent, and no basis existed to fault her assessment.
The court confirmed that the judge applied the Leo Sila Mutiso guidelines; the mistaken-belief explanation failed because counsel attended delivery of the ruling; the judge rightly refrained from determining arguability of the intended appeal, which is not for a single judge; and the applicant's long-standing indebtedness established prejudice.
Legal principles established
#- A full bench on a reference under Rule 57(1)(b) does not rehear the extension-of-time application; it intervenes only where the single judge misdirected herself or the decision was plainly wrong.
- A full bench will be very slow to interfere with a single judge's discretion unless it was exercised capriciously or upon misdirection resulting in a wrong decision or misjustice.
Court orders
#- 1.The reference dated December 2, 2024 is dismissed
- 2.Costs of the reference to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal (decision of a single judge)
- Application dated 9th July 2024; ruling in respect of Milimani HCCOMM No. E456 of 2022
- Jurisdiction invoked
- Rule 57(1)(b) of the Court of Appeal Rules
Relief refused
#Variation or reversal of the single judge's decision declining extension of time to file a notice of appeal
The applicant failed to demonstrate that the single judge misdirected herself or that her decision was plainly wrong
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.
In the premises, the reference dated December 2, 2024, challenging the ruling of the Honourable Lady Justice F. Sichale, JA. delivered on November 8, 2024, is hereby dismissed with costs to the respondent.
Our remit in a reference under Rule 57(1)(b) is not to rehear the application for extension of time but to determine whether the single judge properly exercised her wide discretion.
This Court should not interfere simply because it might have reached a different conclusion.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndiritu v Kinuthia (Civil Application E356 of 2024) [2025] KECA 781 (KLR)", Case Analysis (2025). Reference dated December 2, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/781/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.