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Court of AppealAllowedJudicial Review Application – Notice of Motion dated 29th May 2025

Osman v Cabinet Secretary Ministry of Interior & Co-ordination of National Government & 4 others (Civil Application E338 of 2025) [2025] KECA 1964 (KLR)

Court of Appeal
21 November 2025
806 words in judgment
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The bottom line

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The Court of Appeal allowed a one-month-late appeal to proceed because the applicant's former lawyers failed to tell him about the judgment.

What this practically means

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Executive summary

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This is a single-Judge ruling of the Court of Appeal at Nairobi, delivered by D. K. Musinga on 21st November 2025, on a notice of motion dated 29th May 2025 by Mohammed Osman seeking leave to file and serve a notice of appeal and record of appeal out of time. The intended appeal lies against a judgment delivered on 30th April 2025 by Onyiego, J. in Judicial Review - HCCJR No. E006 of 2024. The applicant attributed the delay to his former advocates' failure to notify him of the judgment in time, annexed a draft memorandum of appeal containing 12 grounds, and asserted the appeal was arguable and that the respondents would suffer no prejudice. The respondents, through Njette Adwar, Senior State Counsel, filed no replying affidavit but submitted that the former advocate was present when judgment was delivered, that there was no due diligence, and that the appeal had no chances of success. The Court held that rule 4 confers an unfettered but judiciously exercisable discretion, applying the principles in Nicholas Kiptoo Arap Salat v IEBC [2014] KESC 12 (KLR). Finding no evidence that the applicant or his advocate attended the judgment delivery, the Court accepted that the delay of about one month was explained and not inordinate; it further found the intended appeal arguable and the respondents free of prejudice. Leave was granted, with the notice and record of appeal to be filed and served within 60 days, and costs of the application ordered to abide the outcome of the appeal. The decision below was not disturbed; this was an interlocutory application, not the appeal itself.

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 and serve a notice of appeal and record of appeal out of time
  2. 2.Whether the delay of about one month in instituting the appeal has been explained and is inordinate
  3. 3.Whether the intended appeal is arguable and not frivolous
  4. 4.Whether the respondents will suffer prejudice if the extension is granted

Key legal issues

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01

Applicable principles on extension of time

Holding

Extension of time is an equitable remedy governed by the Salat principles; the applicant must show a reasonable explanation for the delay, an arguable appeal, and absence of prejudice.

Reasoning

The Court restated the Nicholas Kiptoo Arap Salat principles: extension is not a right, the applicant bears the burden of laying a basis, the delay must be explained, prejudice to the respondent considered, and the application must be brought without undue delay, with public interest relevant in some cases.

p. 2
02

Whether the delay was explained and inordinate

Holding

A delay of about one month, attributable to the applicant's former advocates' failure to notify him of the judgment, was not inordinate and was well explained.

Reasoning

The impugned judgment was delivered on 30th April 2025 and the applicant's current advocates applied for certified proceedings on 29th May 2025. There was no evidence the applicant or his advocate was in court when judgment was delivered, so the Court accepted that the previous advocates failed to notify him in time.

p. 2
03

Arguability of the intended appeal and absence of prejudice

Holding

The intended appeal, resting on 12 proposed grounds, is arguable rather than frivolous, and the respondents would suffer no prejudice.

Reasoning

The Court perused the impugned judgment and the draft memorandum of appeal with 12 grounds and concluded the appeal was arguable. The respondents, having filed no replying affidavit, did not demonstrate prejudice; their factual allegations should have been raised on affidavit and were unsupported by evidence.

p. 2

Legal principles established

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  • Rule 4 confers an unfettered discretion on the Court to extend time, but that discretion must be exercised judiciously in accordance with the Salat principles.

Court orders

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  1. 1.Leave granted to file and serve the notice of appeal out of time
  2. 2.Leave granted to file and serve the record of appeal out of time
  3. 3.The notice of appeal and record of appeal to be filed and served within sixty (60) days from the date of the ruling
  4. 4.Costs of the application to abide the outcome of 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
Judicial Review - HCCJR No. E006 of 2024
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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 hereby exercise my discretion in favour of the applicant and grant leave to file and serve the notice of appeal as well as the record of appeal out of time. The same should be filed and served within sixty (60) days from the date of the ruling.
p. 3Final orders – extension of time granted
In an application for extension of time under rule 4 of this Court’s Rules, the Court exercises unfettered discretion, but the discretion has to be exercised judiciously.
p. 2Judicial discretion under rule 4
The costs of the application shall abide the outcome of the appeal.
p. 3Costs

Issues in the judgment

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minor

The judgment is signed only by D. K. Musinga, (President) but the coram of the full bench, if any, is not stated; the application has been determined by a single Judge of Appeal under the Rules.

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, "Osman v Cabinet Secretary Ministry of Interior & Co-ordination of National Government & 4 others (Civil Application E338 of 2025) [2025] KECA 1964 (KLR)", Case Analysis (2025). Judicial Review Application – Notice of Motion dated 29th May 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1964/eng@2025-11-21

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