Kipkemboi ((Suing as the Administrator of the Estate of Kibet Arap Ngisieri – Deceased)) v Jepkemboi & another (Civil Application E006 of 2025) [2025] KECA 1272 (KLR)
The bottom line
#Kenya's Court of Appeal gave an appellant more time to file his appeal, ruling that a lawyer's mistake is excusable and that execution of a judgment does not kill an appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there has been a change of advocate requiring compliance with rule 23(1) of the Court of Appeal Rules
- 2.Whether the delay in filing the record of appeal has been satisfactorily explained
- 3.Whether the respondents will be prejudiced if the time for filing the appeal is enlarged
Key legal issues
#Rule 23(1) of the Court of Appeal Rules - notice of change of advocate
No change of advocate had occurred, so rule 23(1) compliance was not required.
The respondents argued the applicant's counsel was improperly on record absent a notice of change of advocate under rule 23(1). The court agreed with the applicant that there had been no change of advocate in the matter, and therefore rejected this ground of opposition as having no merit.
Whether the delay in filing the record of appeal was satisfactorily explained
The delay of about 20 days, attributed to the mistake of the applicant's former counsel, was excusable.
Applying the Salat principles, the court accepted that the applicant instructed counsel and paid fees promptly after the 3rd October 2024 ruling; counsel failed to file the record. The delay was approximately 20 days once the Christmas recess was discounted. Relying on Tana and Athi Rivers and Chemaringo authorities, mistake of counsel is excusable where it affords just, expeditious disposal and a satisfactory explanation exists.
Whether the respondents would be prejudiced by the enlargement of time
No prejudice; execution of the judgment does not bar the appeal, since extension of time is not a stay.
The respondents claimed the judgment had been executed and the appeal was overtaken by events. The court held that enlargement of time or filing an appeal does not operate as a stay unless expressly provided, so the respondents remain free to execute, and execution does not deprive a deserving party of the right to appeal.
Legal principles established
#- Execution of a decree does not, of itself, defeat an application for enlargement of time; extension of time does not operate as a stay and a judgment creditor may proceed with execution
- Courts will readily excuse a mistake of counsel where it affords a justiciable, expeditious and holistic disposal of a matter, but the exercise of that discretion is not automatic
- The law fixes no minimum or maximum period of delay; what matters is a plausible and satisfactory explanation for the delay
Court orders
#- 1.Time for filing the record of appeal is enlarged
- 2.The applicant shall file and serve the record of appeal within 30 days from the date of delivery of the ruling
- 3.Costs of the application shall be in accordance with the order on costs in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Inherent discretion to enlarge time under the Court of Appeal Rules (extension of time jurisdiction); no specific provision quoted in the ruling
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 applicant shall file and serve the record of appeal within 30 days from the date of the delivery of this ruling. The costs for the application shall be in accordance with the order on costs in the intended appeal.
Knowing that an order of enlargement of time or the filing of an appeal does not act as an order of stay, unless expressly provided, I see no prejudice or anything barring the respondents from proceeding with execution.
A plausible and satisfactory explanation for delay is the key that unlocks the court's fiow of discretionary favour.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
Issues in the judgment
#The case number, neutral citation and the parties' actual names are not stated anywhere in the judgment copy; only 'the applicant' and 'the respondents' are used.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipkemboi ((Suing as the Administrator of the Estate of Kibet Arap Ngisieri – Deceased)) v Jepkemboi & another (Civil Application E006 of 2025) [2025] KECA 1272 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1272/eng@2025-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.