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Court of AppealAllowedNotice of Motion dated 14th October 2024

Kuria & 19 others v Karanja (Civil Application E098 of 2024) [2025] KECA 860 (KLR)

Court of Appeal of Kenya
15 May 2025
1,504 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed a late strike-out application, ruling that a short delay caused by a lawyer's mistake should not block a case being heard on its merits.

What this practically means

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Executive summary

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This was a single-judge application ruling delivered at Nakuru by Odunga JA on 15th May 2025. The applicants sought leave to file, out of time, an application to strike out a Notice of Appeal dated 26th July 2024, contending that the Notice was lodged by an interested party who was a stranger to the suit and lacked locus standi. Under Rule 86 of the Court of Appeal Rules, a strike-out application must be brought within thirty days of service of the Notice of Appeal, so the applicants needed the Court's indulgence under Rule 4. The application was unopposed. The Court restated the settled Rule 4 principles drawn from Leo Sila Mutiso v Helen Wangari Mwangi: the period of delay, the reasons for it, whether the intended proceedings are frivolous, and prejudice to the respondent. It found the delay of one week, attributed to the advocate, not inordinate, and reiterated from Murai v Wainaina (No 4) via Shital Bimal Shah v Akiba Bank that mistakes of counsel do not close the door of justice unless they amount to total inaction disguised as a mistake. Citing Janet Ngendo Kamau v Mary Wangari Mwangi, the Court held that in the absence of opposition and of any alleged prejudice, the wider interests of justice favour decision on the merits. The motion was allowed: time was extended for the applicants to file their strike-out application within fourteen days, with no order as to costs. The ruling left the earlier decision of Korir JA of 12th July 2024 undisturbed and is interlocutory in nature.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether leave should be granted to the applicants to file their application to strike out the Notice of Appeal dated 26th July 2024 out of time
  2. 2.Whether time should be extended for filing an application to strike out a Notice of Appeal filed by a stranger purportedly lacking locus standi

Key legal issues

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01

Whether a litigant may seek leave to file a strike-out application under Rule 86 after the expiry of the 30-day period

Holding

Yes. Where the delay is short and attributable to counsel, and the application is unopposed and no prejudice is shown, the Court will extend time under Rule 4.

Reasoning

The Court held that Rule 4 empowers it to extend time for doing any act under the Rules, so the settled Rule 4 extension principles apply with equal force to an application to file a Rule 86 strike-out application late. A delay of one week placed on the advocate's doorstep is not inordinate. Counsel's mistakes, however regrettable, are pardonable where the interests of justice dictate rectification. Since the respondent did not oppose the application, no prejudice was alleged and justice favours adjudication on the merits.

p. 4
02

Whether mistakes of counsel justify excusing delay in filing

Holding

A mistake by counsel is still a mistake and may be rectified in the interests of justice, unless it amounts to total inaction disguised as a mistake.

Reasoning

Relying on Murai v Wainaina (No 4) as cited in Shital Bimal Shah v Akiba Bank, the Court reiterated that mistakes of counsel come in all shapes and sizes and that the door of justice is not closed because a mistake was made by an experienced person, though total inaction by counsel disguised as a mistake has been rejected. A one-week delay occasioned by the advocate was therefore excusable.

p. 3

Legal principles established

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  • The principles for extension of time under Rule 4 apply equally to leave to file a strike-out application under Rule 86 out of time, and the Court's discretion, though unfettered, must be exercised on reasons: length of delay, reasons for delay, whether the intended proceedings are frivolous, and prejudice to the respondent.
  • Where there is no opposition to an extension application and no prejudice is alleged, the Court should prefer that matters be decided on the merits rather than on procedural missteps.

Court orders

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  1. 1.Time extended to the applicants to apply for the striking out of the Notice of Appeal dated 26th July 2024
  2. 2.The application to strike out to be filed and served within 14 days from the date of the ruling
  3. 3.No order as to the costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Quotable passages

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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 Court may, on such terms as may be just, by order, extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act
p. 3Rule 4 extension of time power
These are first the period of the delay; secondly, the reasons for such a delay; thirdly (possibly), whether the proceedings for which time is sought to be extended is frivolous; and fourthly, whether the respondent in those proceedings will be unduly prejudiced if the application were to be granted.
p. 3Extension of time principles
The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better.
p. 4Mistakes of counsel
In the premises I find merit in the Notice of Motion dated 14th October, 2024 and extend time to the applicants to apply for the striking out of the Notice of Appeal dated 26th July 2024. Let the application be filed and served within 14 days from the date of this ruling. There will be no order as to the costs of the application.
p. 4Final orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kuria & 19 others v Karanja (Civil Application E098 of 2024) [2025] KECA 860 (KLR)", Case Analysis (2025). Notice of Motion dated 14th October 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/860/eng@2025-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.