Matinde v Kosgey (Civil Application E076 of 2025) [2026] KECA 31 (KLR)
The bottom line
#The Court of Appeal refused to excuse a five-year delay in filing an appeal, dismissing the application because the excuses given were unconvincing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted an extension of time to file and serve the Notice of Appeal and the Record of Appeal out of time
- 2.Whether the reasons advanced for the delay (consultation on prospects of appeal and lack of fees, mitigated by reference to the COVID-19 pandemic) justify the exercise of the Court's discretion under Rule 4
Key legal issues
#Whether the applicant deserved an extension of time under Rule 4 of the Court of Appeal Rules
The application was dismissed: a five-year delay was inordinate, the reasons given were unconvincing, the applicant did not explain the status of procuring proceedings, and the pandemic excuse failed because online filing existed. The applicant did not deserve the benefit of the Court's discretion.
The Court applied the settled Fahir Mohammed principles: period and reason for delay, chances of success, prejudice and related factors. It found the delay was about five years; consultation on prospects should not take that long; rule 120 caters for those unable to raise fees; the applicant never said when he applied for proceedings or whether he obtained them; and the online filing platform was already operational at the time of judgment, defeating the COVID-19 explanation. The Court concluded the applicant was trying his luck and dismissed the Motion.
Legal principles established
#- The factors for extension of time under Rule 4 are not exhaustive; the Court's discretion is unfettered and considers all relevant factors including delay, reasons, chances of success, prejudice, public administration, compliance with time limits, resources and public importance
- Consultation on the prospects of an appeal cannot justify a delay measured in years, and inability to pay fees is addressed by the waiver/waiver-equivalent machinery under rule 120 of the Court of Appeal Rules, so neither excuse suffices for an inordinate delay
- The COVID-19 pandemic is not an acceptable excuse for failure to appeal where courts had already established online filing platforms
Court orders
#- 1.The Notice of Motion dated 7th November 2025 is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Eldoret
- HCCA No. 133 of 2014
- Jurisdiction invoked
- Rules 41, 42 and 43(1) of the Court of Appeal Rules 2022; substantively Rule 4 of the Court of Appeal Rules (extension of time)
Relief refused
#Extension of time to file and serve the Notice of Appeal and the Record of Appeal
The delay of five years was inordinate and unexplained; consultation on prospects does not take that long, fee concerns are addressed by rule 120, and the COVID-19 explanation is unacceptable because online filing was available; the applicant was not serious with his appeal
Costs in the cause
The application was dismissed in its entirety
Costs
No costs order was made; the application was simply dismissed without any direction on costs (the applicant had sought 'Costs be in the cause', which was not granted).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path since the stricture of “suficient reason” was removed by amendment in 1985.
The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted... are all relevant but not exhaustive factors
Consultations on the prospects of one’s appeal on its merits or otherwise should not take that much time.
this Court makes provisions for persons unable to raise the requisite fees under rule 120 of the Court of Appeal Rules.
Accordingly, the Notice of Motion dated 7th November 2025 lacks merit and it is hereby dismissed.
Issues in the judgment
#The judgment is a certified copy in which the parties' names are omitted; only the underlying High Court case (HCCA No. 133 of 2014, Eldoret) is identified, so the case title and parties cannot be fully ascertained from this document.
The Motion is described as invoking rules 41, 42 and 43(1) of the Court of Appeal Rules 2022, but the Court substantively decides it as an application under Rule 4; the reason for the delay (judgment in 2020, application in 2025) spans the transition between the old and new Rules without explanation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matinde v Kosgey (Civil Application E076 of 2025) [2026] KECA 31 (KLR)", Case Analysis (2026). Not stated in judgment (arises from High Court HCCA No. 133 of 2014, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/31/eng@2026-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.