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Court of AppealPartially AllowedNot stated in the judgment

Thairu v County Secretary, Nairobi City County & 2 others (Civil Appeal (Application) E223 of 2022) [2025] KECA 1756 (KLR)

Court of Appeal
24 October 2025
398 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a single-judge application, in the Court of Appeal at Nairobi, under Rule 4 of the Court of Appeal Rules seeking extension of time to file and serve the record and memorandum of appeal out of time, following a High Court judgment delivered on 14th May 2020 in favour of the respondents. The applicant, through the affidavit of Elizabeth M. Gatuhi of Ndungu Njoroge & Kwach Advocates, explained that a notice of appeal was filed and served in time and that certified copies of the judgment, proceedings and a certificate of delay issued on 11th August 2021; the record of appeal was filed on 14th April 2022, outside the timelines, due to Covid-pandemic related circumstances and substantial internal restructuring in the applicant's advocate's firm. The application was unopposed, but the court (D. K. Musinga, JA) held that it must nonetheless be measured against the established principles, citing Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR: the length of and reason for the delay, arguability of the intended appeal, prejudice to the respondent, the applicant's diligence and any public interest element. Finding the delay well explained, the memorandum of appeal arguable, and no prejudice to the respondents, the court granted the extension as prayed but made no order as to costs. The decision does not disturb the High Court judgment, which remains in place pending the 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 an extension of time to file and serve the record and memorandum of appeal out of the stipulated timelines
  2. 2.Whether the delay has been satisfactorily explained and whether the intended appeal is arguable without prejudice to the respondents

Key legal issues

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01

Whether extension of time should be granted for filing the record and memorandum of appeal

Holding

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.

Reasoning

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.

p. 2
02

Whether an unopposed application may be granted without scrutiny

Holding

Consent of the respondent does not relieve the court of its duty to test the application against the established principles for extension of time.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.No order as to costs

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
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend time)

Relief refused

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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.

p. 2

Costs

No order as to costs - each party to bear their own costs of the application.

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.

Consequently, I grant the orders as prayed but make no order as to costs.
p. 2Final orders - extension of time granted, no 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.
p. 2Nature of the Rule 4 discretion
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.
p. 2Court's duty where application is unopposed

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, "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.