Kitare & another v Kitera (Civil Application E010 of 2024) [2026] KECA 91 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a second chance to file a late probate appeal because the judge overlooked that leave to appeal was the cause of the delay.
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 learned single Judge (Laibuta, JA.) properly exercised his discretion in dismissing the applicants' application seeking extension of time to file an appeal out of time
Key legal issues
#Scope of the full bench's jurisdiction on a reference under Rule 57(1)(b)
A reference is not an appeal; the full bench limits itself to considering whether the single Judge properly exercised his wide and unfettered discretion under Rule 4, following Kimathi & Another v. Muriuki & 12 Others.
The Court invoked Rule 57(1)(b) of the Court of Appeal Rules, 2022 and adopted the principles in Kimathi v Muriuki: interference is warranted where the single judge considered an irrelevant factor, omitted a relevant factor, misapprehended a point of law or fact, or arrived at a plainly wrong decision. The reference therefore was a review of the exercise of discretion, not a rehearing of the application de novo.
Whether the single Judge failed to consider a relevant factor in dismissing the extension of time application
The single Judge failed to take into account the crucial explanation that the delay was occasioned by the appellants' need to revert to the High Court to obtain leave to appeal, which leave was granted on 6th November 2023.
The Court found that without leave, the appeal could not have been entertained in the Court of Appeal, so seeking leave first was the only plausible move. The supporting affidavit deposed to this procedural mishap at paragraphs 12 and 13, yet the ruling did not address it. The appellants also acted promptly once the Certificate of Delay was issued on 21st February 2024, filing the Rule 4 application the next day. The omission of this relevant consideration vitiated the exercise of discretion.
Factors governing extension of time under Rule 4
The discretion under Rule 4 is unfettered and guided by relevant factors including the period of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent, per Fakir Mohammed v Joseph Mugambi.
The Court restated the well-beaten path for Rule 4 applications: since removal of the stricture of 'sufficient reason' in 1985, the discretion is unfettered and no limit exists on relevant factors, so long as they are relevant. The listed factors are non-exhaustive, encompassing effect on public administration, importance of compliance with time limits, resources of the parties and issues of public importance.
Legal principles established
#- A reference from a decision of a single Judge is not an appeal; the full bench may interfere with the single Judge's discretion under Rule 4 only on established principles: where the judge took into account an irrelevant factor, failed to take into account a relevant factor, misapprehended a point of law or fact, or where the decision is plainly wrong.
- In an application for extension of time, the single Judge is expected to consider among other factors, the reasons for the delay, the length of the delay, the chances of the appeal succeeding and the prejudice to be occasioned to the respondent.
Court orders
#- 1.The Reference is allowed
- 2.The ruling of the learned Judge (Laibuta, JA.) dated and delivered on 21st June 2024 dismissing the application for extension of time is set aside
- 3.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya (decision of a single Judge, Laibuta, JA.)
- Application dated 22nd February 2024 under Rule 4, arising from High Court Probate and Administration Cause No. E004 of 2021
- Jurisdiction invoked
- Rule 57(1)(b) of the Court of Appeal Rules, 2022 (reference against decision of a single Judge)
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.
A reference from the decision of a single Judge, invokes the full bench to limit itself to consider whether the single Judge properly exercised his unfettered and wide discretion under Rule 4 of this Court's Rules, 2022.
In view of the foregoing, we find and hold that this Reference is meritorious. We find that the learned judge in failing to extend time to the applicants to file the appeal, failed to consider that the delay was occasioned by the time taken to revert to the High Court to seek leave to appeal to this Court.
Consequently, we respectfully disagree with the outcome of the ruling of the single Judge, and accordingly allow the Reference. We set aside the ruling of the learned Judge (Laibuta, JA.) dated and delivered on 21st June 2024. We make no order as to costs.
Issues in the judgment
#Internal inconsistency in the date of the Dulu, J. ruling: described as 'dated 5th October 2023' in paragraph 1 and 2, but paragraph 2 states it was 'dismissed by a ruling (Dulu, J.) dated 5th October 2021'; elsewhere the Notice of Appeal is dated 5th October 2023.
Inconsistent date of the Mativo, J. ruling: stated as 21st September 2022 in paragraphs 1-2, but paragraph 9 refers to 'the one dated 21st September 2021 by Mativo, JA.'.
Mativo described as 'JA.' in paragraph 9 though he was a High Court Judge ('Mativo, J. (as he then was)') at the time of the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitare & another v Kitera (Civil Application E010 of 2024) [2026] KECA 91 (KLR)", Case Analysis (2026). Reference from ruling of Laibuta, JA. dated 21st June 2024 (application dated 22nd February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/91/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.