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Court of AppealAllowedMotion on notice dated 3rd April 2023 (Court of Appeal, single Judge, Rule 4 application)

Mailu (suing as the legal representative of the Estate of Mailu Mulinge - Deceased) v Deputy County Commissioner, Mukaa Sub-County & 3 others (Civil Application E133 of 2023) [2025] KECA 1193 (KLR)

Court of Appeal of Kenya
4 July 2025
1,194 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed a self-represented litigant to appeal out of time, accepting illness, delayed court proceedings and communication breakdown as valid reasons for the delay.

What this practically means

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Executive summary

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Mutua Mailu, acting in person, moved a single Judge of the Court of Appeal at Nairobi by a motion dated 3rd April 2023 under sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4 and 82 of the Court of Appeal Rules 2010, seeking leave to file a notice of appeal and memorandum/record of appeal out of time against a ruling delivered by T. Murigi, J in the High Court on 19th October 2022. He explained the delay by pointing to the court's delay in supplying certified proceedings (received on 14th December 2022), his serious illness thereafter, and a breakdown in communication with his former advocate. John Mutiso Kikole, the interested party, opposed, contending that the motion was filed by a stranger since the applicant had not obtained leave to act in person, and that the delay of some six months from receipt of proceedings was inordinate, noting that during the same period the applicant had prosecuted an application for stay pending appeal. The 1st to 3rd respondents did not respond despite service. Applying the settled Rule 4 principles from Mwangi v Kenya Airways Limited and Leo Sila Mutiso v Rose Hellen Wangari Mwangi, F. Sichale, JA held that the delay of about 12 days in filing the notice of appeal was not inordinate, the reasons for the delay were reasonable and plausible, no prejudice would befall the respondents, and declined to assess the arguability of the intended appeal as that was beyond a single Judge. The motion was allowed as prayed, with 30 days given to file the notice and memorandum of appeal failing which the orders would stand vacated, and costs made to abide the outcome of the intended appeal.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted leave to file a notice of appeal and memorandum/record of appeal out of time under Rule 4 of the Court of Appeal Rules 2010
  2. 2.Whether the length of the delay was inordinate
  3. 3.Whether the reasons advanced for the delay were plausible and sufficient
  4. 4.Whether the respondents would suffer prejudice if the extension was granted

Key legal issues

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01

Length of delay

Holding

A delay of about 12 days in filing the notice of appeal was not inordinate.

Reasoning

The impugned ruling was delivered on 19th October 2022 and the notice of appeal was filed on 14th November 2022. The court assessed this interval in the circumstances of the case and found it short enough not to be inordinate, being one factor in the overall Rule 4 discretion.

p. 3
02

Reasons for the delay

Holding

Delay in supply of certified proceedings, ill health and breakdown in communication with previous counsel constituted reasonable and plausible reasons sufficiently explaining the delay.

Reasoning

The applicant attributed the delay to the court's delay in supplying certified proceedings, his serious illness after receiving the proceedings on 14th December 2022, and a breakdown in communication with his former advocate. The court accepted these explanations as reasonable and sufficient, satisfying it that the delay was explained.

p. 3
03

Arguability of the intended appeal

Holding

A single Judge should not determine the arguability of the intended appeal at the extension-of-time stage.

Reasoning

The court declined to comment on whether the intended appeal was arguable, holding that such a determination was outside the province of a single Judge exercising Rule 4 discretion, and proceeded on the remaining factors.

p. 3
04

Prejudice to the respondents

Holding

No prejudice would be suffered by the respondents if the extension was granted.

Reasoning

The 1st, 2nd and 3rd respondents did not respond to the motion despite service; only the interested party opposed. The court was satisfied that allowing the application would cause no prejudice, completing the Rule 4 analysis in the applicant's favour.

p. 3

Legal principles established

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  • In deciding an application to extend time under Rule 4, the court exercises a wide but judicious discretion guided by the length of the delay, the reason for the delay, the arguability of the intended appeal and the prejudice to the respondent.

Court orders

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  1. 1.The applicant's motion dated 3rd April 2023 is allowed as prayed
  2. 2.Leave granted to file the notice of appeal and memorandum of appeal (record of appeal) out of time
  3. 3.The applicant shall file the notice and memorandum of appeal within 30 days from the date of the ruling, failing which the orders shall stand vacated
  4. 4.Costs of the motion shall abide the outcome of the intended appeal

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4 and 82 of the Court of Appeal Rules 2010 (inherent and discretionary jurisdiction of a single Judge of the Court of Appeal to extend time)

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 has wide and unfettered discretion in deciding whether to extend time or not. However, in exercising its discretion, the court should do so judiciously.
p. 3Nature of Rule 4 discretion
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.
p. 3Extension of time principles
Taking into totality all the circumstances of this case, I am of the considered view that the applicant has demonstrated and satisfied the existence of the principles for consideration in the exercise of my unfettered discretion pursuant to rule 4 of this court to extend time.
p. 3Conclusion on Rule 4 threshold
Accordingly, the applicant’s motion dated 3rd April 2023, is merited and the same is hereby allowed as prayed. The applicant shall file the notice and memorandum of appeal within a period of 30 days from the date of this ruling failure to which these orders shall stand vacated.
p. 3Final orders

Issues in the judgment

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minor

The judgment inconsistently describes the length of delay: the motion is dated 3rd April 2023 (filed 6th April 2023 per the parties), yet at paragraph 15 the court states 'The motion herein was filed on 14th November 2022', conflating the notice of appeal with the motion.

minor

The judgment contains typographical errors ('profiered' for 'proffered', 'sufier' for 'suffer', 'suficiently' for 'sufficiently') and repeats 'the the'.

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, "Mailu (suing as the legal representative of the Estate of Mailu Mulinge - Deceased) v Deputy County Commissioner, Mukaa Sub-County & 3 others (Civil Application E133 of 2023) [2025] KECA 1193 (KLR)", Case Analysis (2025). Motion on notice dated 3rd April 2023 (Court of Appeal, single Judge, Rule 4 application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1193/eng@2025-07-04

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