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Court of AppealPartially AllowedNairobi Civil Appeal No. 302 of 2019 (motion on notice dated 29th January 2025)

Kairu v Njau & 6 others (Civil Application E061 of 2025) [2025] KECA 1967 (KLR)

Court of Appeal of Kenya
21 November 2025
1,758 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal gave a litigant six years late to file his appeal, blaming his lawyer's lapses rather than him.

What this practically means

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Executive summary

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This is a ruling by a Single Judge of the Court of Appeal (F. Sicha, JA) on a motion dated 29th January 2025 by Peter Nyaga Kairu seeking leave to file an appeal out of time against the judgment of Hon. Lady Justice Lucy Mbugua delivered on 2nd May 2019 in Thika ELC Case No. 275 of 2017, together with an injunction over LR Numbers 4148/12 and 4148/13 pending appeal. The applicant's earlier appeal (Nairobi Civil Appeal No. 302 of 2019) was struck out on 28th February 2024 owing to irregularities attributed to drafting lapses by his then counsel, who was undergoing cancer treatment, left the jurisdiction repeatedly, and died on 28th August 2022. The applicant, a 65-year-old with serious health conditions including a recent kidney transplant, argued the delay was excusable. The 1st respondent opposed, characterising the delay as deliberate negligence and noting no compliant Notice of Appeal was on record. Applying the well-established Rule 4 factors from Mwangi v Kenya Airways Limited and Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the Judge held the delay was not inordinate in the circumstances, that counsel's procedural lapses could not be attributed to the applicant personally, and that no prejudice would befall the respondents who had long known of the intention to appeal. The motion was allowed in terms of the extension-of-time prayer only; the injunction prayer was declined as beyond a Single Judge's remit. The applicant was given 14 days to file the appeal, failing which the orders lapse, with costs abiding the appeal's outcome.

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 under Rule 4 to file an appeal out of time against the judgment of 2nd May 2019
  2. 2.Whether the delay of about six years was inordinate and sufficiently explained
  3. 3.Whether an injunction should issue restraining interference with LR Number 4148/12 and 4148/13 pending appeal

Key legal issues

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01

Whether the delay of about six years warranted extension of time under Rule 4

Holding

The delay was not inordinate in the circumstances and the reasons given - counsel's illness and death, and the applicant's advanced age and ill health - sufficiently explained it

Reasoning

The Judge applied the Mwangi v Kenya Airways guidelines: length of delay, reason for delay, arguability and prejudice. The applicant, a 65-year-old uneducated litigant, filed a Notice of Appeal on the day of judgment; the appeal failed through counsel's drafting lapses, her cancer and death, and his own serious illness requiring a kidney transplant. Procedural lapses of counsel cannot be attributed to the litigant personally. Denial would shut him out from the seat of justice.

p. 4
02

Whether prejudice would be suffered by the respondents

Holding

No prejudice would be occasioned because the respondents had always been aware of the applicant's intention to appeal

Reasoning

The respondents had been served with the original Notice of Appeal which was later struck out, so they had been on notice of the intention to appeal throughout. Conversely, refusing the motion would completely shut the applicant out from the seat of justice. The arguability of the intended appeal could not be determined by a Single Judge and was left open.

p. 4

Legal principles established

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  • In deciding an application to extend time under Rule 4, the Court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and prejudice; and the striking out or withdrawal of a prior appeal is not one of the listed factors.
  • The Court's discretion under Rule 4 is wide and unfettered but must be exercised judiciously.

Court orders

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  1. 1.The motion dated 29th January 2025 is allowed in terms of prayer 2 only (leave to file the appeal out of time)
  2. 2.The applicant shall file the appeal within 14 days from the date of the ruling, failing which the orders shall stand vacated
  3. 3.Costs of the motion shall abide the outcome of the intended 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
Environment and Land Court (High Court)
Thika ELC Case No. 275 of 2017 (formerly Nairobi High Court Civil Case No. 162 of 2005)
Jurisdiction invoked
Sections 3(1), (2) & 3, 3A, 3B of the Appellate Jurisdiction Act, Cap 9; Rules 4, 5(2)(b), 31, 43 and 49 of the Court of Appeal Rules 2022; Articles 50 and 159 of the Constitution

Relief refused

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Prayer for an injunction restraining the respondents from dealing with LR Number 4148/12 and 4148/13 pending appeal

A Single Judge cannot determine the interlocutory injunction application

p. 4

Costs

The costs of this motion shall abide the outcome of the intended 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.

It is now well setled that the decision whether or not to extend time for appealing is essentially discretionary.
p. 3Rule 4 extension of time - discretionary nature
Accordingly, the applicant's motion dated 29th January 2025, is merited and the same is hereby allowed in terms of prayer 2 only.
p. 4Final orders - leave granted
The applicant shall proceed to file the appeal within a period of 14 days from the date of this ruling failure to which these orders shall stand vacated.
p. 4Final orders - timeline and vacation clause

Issues in the judgment

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minor

Internal inconsistency: the depositions state the appeal was struck out on 28th February 2024, while the ruling also records that on 25th November 2024 the applicant's appeal was withdrawn, and the 1st respondent asserts there is no Notice of Appeal on record despite the court finding one had been served

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, "Kairu v Njau & 6 others (Civil Application E061 of 2025) [2025] KECA 1967 (KLR)", Case Analysis (2025). Nairobi Civil Appeal No. 302 of 2019 (motion on notice dated 29th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1967/eng@2025-11-21

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