Thairu v County Secretary, Nairobi City County & 2 others (Civil Appeal (Application) E223 of 2022) [2025] KECA 1756 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal after Covid-era delays, confirming unopposed extension applications still face full judicial scrutiny.
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 applicant should be granted an extension of time to file and serve the record and memorandum of appeal out of the stipulated timelines
- 2.Whether the delay has been satisfactorily explained and whether the intended appeal is arguable without prejudice to the respondents
Key legal issues
#Whether extension of time should be granted for filing the record and memorandum of appeal
The discretion under Rule 4 was exercised in the applicant's favour: the delay was well explained (Covid-pandemic related circumstances and internal restructuring in the advocate's firm), the appeal was arguable, and the respondents would suffer no prejudice.
The court restated the Salat principles governing Rule 4 applications: length of delay, reason for delay, arguability, prejudice, diligence and public interest. The applicant filed a notice of appeal in time and obtained certified copies and a certificate of delay; the explanation for the delay in filing the record was accepted, the memorandum of appeal disclosed arguable grounds, and no prejudice to the respondents was identified. Notably, the court considered the principles even though the application was unopposed.
Whether an unopposed application may be granted without scrutiny
Consent of the respondent does not relieve the court of its duty to test the application against the established principles for extension of time.
The court expressly noted that although the application was unopposed, it would still consider it on its merits against the Salat principles. This confirms that extension of time is a judicial discretion exercised on objective principles, not a purely administrative or consensual act, so a court may refuse even an unopposed application that fails the principles.
Legal principles established
#- Rule 4 confers an unfettered discretion to extend time, but the discretion must be exercised judiciously on sound principles, considering the length of and reason for the delay, arguability of the appeal, prejudice to the respondent, the applicant's diligence, and any public interest element.
Court orders
#- 1.Extension of time granted to file and serve the record and memorandum of appeal, as prayed in the notice of motion dated 24th June 2025
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretion to extend time)
Relief refused
#Costs of the application
Although the application was granted as prayed, the court declined to award costs, making no order as to costs despite the application being unopposed.
Costs
No order as to costs - each party to bear their own costs of the application.
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.
Consequently, I grant the orders as prayed but make no order as to costs.
Rule 4 of this Court's Rules grants this Court unfettered discretion to extend the time limited by the Rules or by any decision of the Court. However, such discretion must be exercised judiciously and on sound principles.
The application is not opposed. That notwithstanding, I must still consider it in light of the principles set by this Court in respect of applications for extension of time.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thairu v County Secretary, Nairobi City County & 2 others (Civil Appeal (Application) E223 of 2022) [2025] KECA 1756 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1756/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.