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Court of AppealAllowedNot stated in the judgment

Ndwiga v Muthanje (Civil Appeal (Application) 40 of 2020) [2025] KECA 2102 (KLR)

Court of Appeal of Kenya
28 November 2025
1,431 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal revived an appeal that had stalled because the applicant struggled to find out who had taken over a deceased party's estate.

What this practically means

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Executive summary

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This is a decision of a full bench of the Court of Appeal at Nyeri on a reference under rule 57(1) of the Court of Appeal Rules, 2022 from a ruling of Muchelule, JA delivered on 20th December 2024. The single Judge had dismissed a Motion dated 3rd September 2024 in which the applicant, Mariko Ndwiga, sought revival of an abated appeal, extension of time for joinder of the respondent's legal representative, and the joinder of Nguu Gakindu as legal representative of the estate of the deceased respondent, Edith Muthanje. The single Judge found that no explanation had been offered for the delay between 21st September 2021, when the grant was issued, and 5th March 2024. The reference, made timeously within seven days by letter dated 27th December 2024, was urged unopposed, counsel for the respondent having been served but absent without explanation. The full Court held that a reference is not an appeal and must be handled with care, considered the whole record of the Motion, and found that there was evidence of efforts to obtain information - including an unanswered letter to the respondent's advocates - and that, particularly in a rural setting, obtaining such information may be difficult and cause delay. The Court concluded that the Judge should have exercised his wide discretion and allowed the Motion, as the delay had a reasonable explanation and was not inordinate. The reference and the Motion were allowed, with no order on costs, enabling the appeal to be revived and heard on the merits with the substituted legal representative as party.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the reference from the single Judge's ruling dismissing the Motion dated 3rd September, 2024 should be allowed
  2. 2.Whether the Judge ought to have exercised his discretion to allow extension of time for joinder of the respondent's legal representative, revival of the abated appeal, and substitution of Nguu Gakindu as the respondent's legal representative
  3. 3.Whether there was a reasonable (as opposed to inordinate) explanation for the delay in seeking revival and substitution

Key legal issues

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01

Whether the delay between the grant of letters of administration (21st September 2021) and the application of 3rd September 2024 was inordinate and unexplained

Holding

The full Court found that the Judge erred in failing to appreciate the evidence of the applicant's efforts to obtain information, and that the delay was not inordinate; the Judge should have exercised his wide discretion in favour of the Motion.

Reasoning

The applicant had written a letter dated 5th March 2024 to the respondent's advocates enquiring whether a grant had been issued, which went unanswered, and only through frantic efforts established that a grant had been made to Nguu Gakindu on 21st September 2021. The Court held that in a rural setting such information may not be readily available, providing a reasonable explanation for the delay, and that the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act favoured determination of the appeal on the merits.

p. 4
02

The nature and handling of a reference from a single judge's decision under rule 57 of the Court of Appeal Rules, 2022

Holding

A reference is not an appeal; the requirements of informal application or written application to the Registrar within seven days were satisfied, and no additional evidence was adduced before the full Court.

Reasoning

The Court recited rule 57(1), noted that the request must be made informally to the Judge or within seven days of the ruling, and that no additional evidence is permitted upon such a reference. The applicant's request by letter dated 27th December 2024 was made within seven days of the ruling delivered on 20th December 2024, and the reference was decided on the record of the Motion before the single Judge.

p. 2

Legal principles established

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  • A reference from the decision of a single judge is not an appeal and must be handled with corresponding caution by the full Court.
  • Under rule 57 of the Court of Appeal Rules, 2022, a person dissatisfied with a single judge's decision in a civil matter may apply informally to the judge at the time of the decision or in writing to the Registrar within seven days, and no additional evidence may be adduced on the reference.
  • In applying the overriding objective, particularly in a rural setting where information may not be easily available, a delay occasioned by difficulty in obtaining information may be reasonable rather than inordinate, and the Court's wide discretion should be exercised in favour of having an appeal determined on the merits.

Court orders

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  1. 1.The reference is allowed
  2. 2.The Motion dated 3rd September, 2024 is allowed
  3. 3.No order on costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Court of Appeal of Kenya (decision of a single Judge, Muchelule, JA)
Not stated in the judgment
Jurisdiction invoked
Rule 57(1) of the Court of Appeal Rules, 2022 (reference from the decision of a single judge, under the proviso to section 5 of the Appellate Jurisdiction Act)

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.

We allow the reference. The Motion dated 3rd September, 2024 is allowed. We make no order on costs.
p. 4Final orders - reference allowed, Motion allowed, no order on costs
We think in the circumstances that the Judge should have exercised his wide discretion and allowed the Motion. There was reasonable explanation for delay which was not inordinate in the circumstances.
p. 4Exercise of discretion; reasonable versus inordinate delay
We are aware that a reference from the decision of a single Judge is not an appeal, and we have to be careful how we deal with the reference.
p. 3Nature of a reference under rule 57
We take it that, particularly in a rural setting where information may not be easily or readily available that it may not be easy to obtain information in a timely manner which could lead to delay in complying with timeliness for doing on time what the law requires.
p. 3Overriding objective and access to information in a rural setting

Issues in the judgment

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minor

The name of the appointed legal representative is inconsistently rendered within the judgment itself ('Gakindu' and 'Gakundi')

minor

The judgment does not state the case number or the parties' full case caption for the appeal/reference, and the applicant is referred to both as appellant (in the underlying appeal) and applicant (in the reference)

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, "Ndwiga v Muthanje (Civil Appeal (Application) 40 of 2020) [2025] KECA 2102 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2102/eng@2025-11-28

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