Lumezani & 4 others v Lwugi (Civil Application E007 of 2025) [2025] KECA 1061 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend an 8-month appeal deadline because the applicants explained the delay with vague claims and no supporting evidence.
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 applicants should be granted leave to file a notice of appeal and appeal out of time
- 2.Whether the firm of M/s Seneti and Oburu Associates Advocates should be granted leave to come on record
- 3.Whether stay of the impugned judgment should be granted
- 4.Whether the delay of approximately 8 months is inordinate and sufficiently explained
Key legal issues
#Whether the delay of approximately 8 months in seeking leave to appeal was excusable
The delay was inordinate, unexplained and unsubstantiated; the application was dismissed.
The judgment was delivered on 21 November 2023 and the notice of appeal period expired on 5 December 2023, yet the application was filed on 19 July 2024. The reasons advanced - the 1st applicant's medical challenges and old age, failure to communicate the judgment to the 2nd to 4th applicants, and late instruction of counsel - were each found deficient, vague and unsupported by any medical reports, certificates or other credible evidence.
Whether the intended appeal was arguable
Mere assertions of high chances of success without identifying specific grounds of appeal do not meet the test.
The applicants made sweeping, unsubstantiated claims about prospects of success without identifying any specific grounds of appeal or arguable points in the trial judgment. The test requires demonstration of arguable points of law or fact meriting appellate consideration; assertions without supporting particulars are insufficient.
Whether the application was brought under the correct procedural framework
It was not; extension-of-time applications are governed by Rule 4 of the Court of Appeal Rules, 2022, but the court nonetheless considered the application on its merits.
The application cited provisions of the Civil Procedure Act and Civil Procedure Rules, which are primarily applicable to High Court proceedings. The judge noted the correct rule but proceeded to determine the application under Rule 4, exercising the wide but judicious discretion it confers.
Legal principles established
#- Applications to the Court of Appeal for extension of time must be brought under the correct rules of that Court, namely Rule 4 of the Court of Appeal Rules, 2022, not the Civil Procedure Act or Rules.
- In a Rule 4 application the single judge exercises a wide but judicious discretion, considering the length of and reasons for delay, arguability of the intended appeal, and prejudice to the respondent.
- Parties to litigation have a personal duty to monitor the progress of their cases and cannot delegate that responsibility entirely to others.
- An applicant seeking extension of time must account for every day of delay with cogent reasons supported by credible evidence.
Court orders
#- 1.The application dated 19th July 2024 is dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya, Environment and Land Court, Kitale
- E&L No. 157 of 2017
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2022 (extension of time)
Relief refused
#Leave to file notice of appeal and appeal out of time
Delay of approximately 8 months was inordinate and unexplained; reasons unsubstantiated
Leave for M/s Seneti and Oburu Associates Advocates to come on record
Fell with the dismissed application; late instruction of counsel after expiry of the appeal period showed lack of due diligence
Stay of the impugned judgment
Fell with the dismissed application; no merit found
Costs
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 end therefore, I find the delay inordinate and unexplained. The reasons advanced are neither compelling nor supported by credible evidence
parties to litigation have a personal duty to monitor the progress of their cases and cannot delegate this responsibility entirely to others
the late instruction of counsel in July 2024, some 8 months after the statutory appeal period had expired, demonstrates a lack of due diligence that cannot constitute good cause
This Court has consistently held that an applicant seeking extension of time must account for every day of delay and provide cogent reasons supported by credible evidence
Accordingly, I find no merit in this application and it is hereby dismissed with costs to the respondent.
Issues in the judgment
#The judgment does not name the parties in the caption; the applicant and respondent are referred to only by role, limiting identification of the case.
Leo Sila Mutiso v Rose Hellen Wangari Mwangi is cited with the year [1977], though the commonly reported decision is of 1997 - possible typographical error in the judgment.
Minor typographical errors in the original text ("insuficient" for "insufficient").
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lumezani & 4 others v Lwugi (Civil Application E007 of 2025) [2025] KECA 1061 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1061/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.