Kamande v Kiarii
The bottom line
#The Court of Appeal refused to extend time for a late appeal, so the Kshs 1,087,000 refund order against the applicant stands.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Rule 77 (filing notice of appeal within 14 days)
The notice of appeal was filed out of time; even on the applicant's own dates it was lodged after the 11th July 2024 deadline.
Judgment was delivered on 27th June 2024, so the notice of appeal was due by 11th July 2024. The applicant's own grounds and supporting affidavit gave conflicting dates (20th August 2024 vs 12th July 2024), and the exhibited notice bore 12th July 2024 - in either event late.
Compliance with Rule 79 (service of notice of appeal within 7 days of lodging)
Not complied with; service occurred on 20th August 2024, well beyond the seven-day period.
Rule 79 requires service before or within seven days after lodging. The applicant's advocate deponed that the notice was served on 20th August 2024, over a month after the latest permissible filing date, demonstrating non-compliance.
Compliance with Rule 84 proviso (bespeaking proceedings within 30 days and serving the letter)
The letter bespeaking proceedings was made outside 30 days and was not copied to the respondent.
The letter of 20th August 2024 was outside the 30-day window from the 27th June 2024 decision and was not served on the respondent, so the applicant could not benefit from the proviso to Rule 84.
Whether the discretion under Rule 4 should be exercised in the applicant's favour
Dismissed - no satisfactory explanation for the delays, including the delay in bringing the application itself until 28th February 2025.
Applying Fakir Mohamed and Salat, the court found no tangible demonstration of diligence, no plausible explanation for the delay in filing the application, and an unhelpful certificate of delay; the applicant failed to discharge the burden of laying a basis for extension.
Legal principles established
#- The Court of Appeal's discretion under Rule 4 to extend time is unfettered but must be exercised judicially, considering relevant factors such as delay, reason for delay, chances of appeal succeeding, and prejudice.
- Extension of time is not a right but an equitable remedy available to a deserving party at the court's discretion, and the applicant bears the burden of laying a basis to the court's satisfaction.
Court orders
#- 1.The application dated 28th February 2025 is dismissed
- 2.Costs of the application to the respondent
- On appeal from
- High Court of Kenya at Kiambu
- HCCA No. E425 of 2023
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (unfettered discretion to extend time), read with Rules 77, 79 and 84
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamande v Kiarii", Case Analysis (2025). Civil Application E119 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2266/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.