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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNot stated in the judgment (Civil Application under Rule 4)

Hussein (Suing as the administrator of the Estate of Amina Sora Gube) & 2 others v Hirbo (Civil Application E072 of 2025) [2025] KECA 1413 (KLR)

Court of Appeal of Kenya
31 July 2025
785 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal gave a family two extra months' grace to file their appeal, saying a two-month delay explained by missing court documents was acceptable.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri, delivered by S. ole Kantai, JA, sitting as a single Judge, on a motion by Abdalla Sharifi Hussein (suing as administrator of the estate of Amina Sora Gube) and Halima Hage Gumbe seeking leave to file an appeal out of time against the judgment of the High Court at Marsabit (Justice Jesse Njagi) delivered on 6th March 2025 in HCCCA/E006/2022 as consolidated with HCCCMisc/E004/2022. The single Judge entertained only prayers 4 and 5 of the motion, being the prayers for extension of time and leave to file and serve a notice and record of appeal out of time. Applying the established rule 4 principles from Fakir Mohamed vs. Joseph Mugambi & 2 Others, the court found a delay of approximately two months between judgment and application. It held that the delay was not inordinate, noting a letter bespeaking proceedings written about five weeks after judgment and the applicants' explanation that typed proceedings had not been received in time. The court excused the absence of a notice of appeal and found no prejudice to the respondent. The motion was allowed: notice of appeal to be lodged within seven days, record of appeal to be filed fourteen days thereafter, with costs of the motion in the appeal. This is an interlocutory ruling exercising discretionary single-Judge jurisdiction; it does not disturb the High Court decision, which remains in place pending 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 applicants should be granted leave to file the appeal out of time (extension of time to file notice and record of appeal)
  2. 2.Whether the delay of about two months since judgment was inordinate and whether sufficient reason exists to excuse it
  3. 3.Whether the respondent would suffer prejudice if the extension is granted

Key legal issues

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01

Whether the two-month delay in filing the appeal should be excused

Holding

The delay was not inordinate; a letter bespeaking proceedings was written about five weeks after judgment, and the delay was attributed to non-receipt of typed proceedings.

Reasoning

The court measured the delay between the judgment of 6th March 2025 and the application dated 6th May 2025, approximately two months. It found the applicants had promptly sought proceedings (letter of 11th April 2025) and that the delay was explained. The court noted the absence of a notice of appeal but excused that lapse given the finding of no inordinate delay and the absence of prejudice to the respondent.

p. 2
02

Whether the respondent would be prejudiced by the extension

Holding

The respondent would suffer no prejudice that could not be compensated by costs, supporting the exercise of discretion in the applicants' favour.

Reasoning

Prejudice to the respondent is a standard factor in the rule 4 jurisdiction. The court found nothing to suggest the respondent would be prejudiced if the discretion were exercised in favour of the applicants, which weighed in favour of granting the extension of time and leave to file the notice and record of appeal out of time.

p. 2

Legal principles established

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  • In exercising its unfettered discretion under rule 4 to extend time, the court considers relevant but not exhaustive factors including the period of delay, the reason for the delay, the chances of the appeal succeeding, the degree of prejudice to the respondent, the effect of the delay on public administration, the importance of compliance with time limits, the resources of the parties, and whether the matter raises issues of public importance.

Court orders

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  1. 1.Leave granted to the applicants to file the appeal out of time against the judgment of the High Court delivered on 6th March, 2025 in HCCCA/E006/2022 as consolidated with HCCCMisc/E004/2022
  2. 2.Notice of appeal to be lodged within seven (7) days of 31st July, 2025
  3. 3.Record of appeal to be filed fourteen (14) days thereafter
  4. 4.Costs of the motion to be in the 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 at Marsabit
Marsabit Civil Appeal No. E06 of 2022 as consolidated with HCCCMisc/E004/2022 (also referenced as HCCCA/E006/2022)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time; single Judge jurisdiction over prayers 4 and 5 of the motion)

Relief refused

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Other prayers in the motion beyond prayers 4 and 5

As a single Judge, the Court could only entertain prayers 4 and 5; the remaining prayers were outside single-Judge jurisdiction and were not determined

p. 1

Costs

Costs of the motion will be in the appeal.

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.

I allow the motion for leave to extend time. Let notice of appeal be lodged within seven (7) days of today and record of appeal be filed fourteen (14) days thereafter. Costs of the motion will be in the appeal.
p. 2Final orders - extension of time granted with timelines
As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant.
p. 2Nature of the rule 4 discretion
I do not think there is inordinate delay.
p. 2Finding on delay
I cannot see how the respondent would be prejudiced if I exercise discretion in favour of the applicants.
p. 2Absence of prejudice

Issues in the judgment

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minor

The prayer quoted in the judgment refers to an appeal against the decision of Justice Jesse Njagi in Marsabit Civil Appeal No. E06 of 2022, but the leave sought is against a judgment delivered in HCCCA/E006/2022; the case numbers are inconsistently rendered in the judgment.

minor

The letter bespeaking proceedings is inconsistently dated within the judgment - once as 11th April, 2020 and once as 11th April, 2025.

minor

The respondent is not named anywhere in the judgment as reproduced, and the case title is not stated.

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, "Hussein (Suing as the administrator of the Estate of Amina Sora Gube) & 2 others v Hirbo (Civil Application E072 of 2025) [2025] KECA 1413 (KLR)", Case Analysis (2025). Not stated in the judgment (Civil Application under Rule 4). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1413/eng@2025-07-31

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