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Court of AppealDismissedApplication for extension of time arising from Kiambu ACCA No. E007 of 2022

Gachuki v Kiunyu (Civil Application E522 of 2024) [2025] KECA 1316 (KLR)

Court of Appeal of Kenya
18 July 2025
919 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to forgive a three-month delay in filing an appeal because the applicant could not explain what he did during that period.

What this practically means

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Executive summary

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This is a single judge application before the Court of Appeal at Nairobi, decided by D. K. Musinga, JA, on 18th July 2025, in which the applicant sought leave to file a notice of appeal out of time against the judgment of Kassan, J. in Kiambu ACCA No. E007 of 2022 delivered on 8th July 2024, together with a stay of execution. The Court declined to consider the stay prayer because it cannot be entertained in a single judge application. On the extension of time, the applicant explained that the judgment was scheduled for 3rd July 2024 but was not ready; the portal indicated 14th August 2024; yet it was delivered early, on 8th July 2024, in his absence. The Court accepted he may not have known of the earlier delivery, but held he failed to explain what he did between 14th August 2024, when he should have checked the record, and 7th October 2024, when he filed the application. Relying on Edith Gichugu Koine vs Stephen Njagi Thoithi and Nicholas Kiptoo Korir Arap Salat vs IEBC, the Court reaffirmed that every delay must be sufficiently explained, that extension of time is an equitable remedy and not a right, and that the applicant bears the burden of laying a basis for the discretion. Finding no reasonable explanation, the Court dismissed the application with costs to the respondent and did not reach the questions of arguability or prejudice. The respondent's objection that the intended second appeal raised matters of fact rather than law was noted but not determined.

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 out of time against the judgment of Kassan, J. delivered on 8th July 2024
  2. 2.Whether the delay between 8th July 2024 and 7th October 2024 was sufficiently explained

Key legal issues

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01

Whether the applicant's delay of approximately three months in moving for extension of time was sufficiently explained

Holding

The application was dismissed because the applicant failed to explain what he did between 14th August 2024, when the portal indicated the judgment would be delivered, and 7th October 2024, when the application was filed.

Reasoning

The Court accepted that the applicant may not have known the judgment was delivered early on 8th July 2024 after the portal showed 14th August 2024. However, the applicant did not say whether he attended court or checked the record on 14th August 2024, nor what he did thereafter. Citing Edith Gichugu Koine and Nicholas Kiptoo Korir Arap Salat, the Court held that a party seeking extension of time bears the burden of laying a basis to the Court's satisfaction, and without explanation the discretion cannot be exercised in his favour. The Court therefore found it unnecessary to assess arguability or prejudice.

p. 2
02

Factors governing the discretion to grant extension of time

Holding

The discretion is guided by the length of the delay, reasons for it, chances of the appeal succeeding, prejudice to the respondent, and whether issues of public importance are raised.

Reasoning

The Court restated the established criteria, citing Edith Gichugu Koine vs Stephen Njagi Thoithi [2014] eKLR, and applied them to the facts, finding the absence of explanation for the delay dispositive without reaching the remaining factors.

p. 2

Legal principles established

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  • Every delay in filing an appeal must be sufficiently explained; extension of time is an equitable remedy available only to a deserving party who lays a basis for the discretion to be exercised.
  • Where no reasonable explanation for delay exists, the Court need not consider the arguability of the intended appeal or prejudice to the respondent.

Court orders

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  1. 1.The application for extension of time to file a notice of appeal is dismissed with costs to the respondent
  2. 2.The prayer for stay of execution is not considered as it cannot be entertained in a single judge application

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 at Kiambu
Kiambu ACCA No. E007 of 2022
Jurisdiction invoked
Inherent discretion of a single Judge of the Court of Appeal under the Court of Appeal Rules to grant extension of time to file a notice of appeal

Relief refused

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Leave to file a notice of appeal out of time

No reasonable explanation was advanced for the delay between 8th July 2024 and 7th October 2024

p. 2

Stay of execution of the judgment of 8th July 2024

A prayer for stay of execution cannot be considered in a single judge application

p. 1

Costs

The application is dismissed with costs to the respondent.

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.

Extension of time is not a right of any party; it is an equitable remedy that can only be granted to a deserving party who has advanced suficient reason(s) for not complying with set timelines as per the Court Rules.
p. 2Nature of extension of time
A party who seeks for extension of time has the burden of laying a basis to the Court’s satisfaction, and without such explanation, the Court would have no basis for exercising its discretion in favour of an applicant.
p. 2Burden on applicant for extension of time
Consequently, this application is without merit and I hereby dismiss it with costs to the respondent.
p. 2Final orders - dismissal with costs

Issues in the judgment

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minor

The judgment misdescribes the nature of the decision below: the applicant and the ruling text refer to a 'ruling' delivered on 8th July 2024, while the Court itself records that it was in fact a judgment.

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, "Gachuki v Kiunyu (Civil Application E522 of 2024) [2025] KECA 1316 (KLR)", Case Analysis (2025). Application for extension of time arising from Kiambu ACCA No. E007 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1316/eng@2025-07-18

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