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Court of AppealAllowedNotice of motion dated 16th May 2025 (extension-of-time application)

Ayusa v Macharia & another (Civil Application E310 of 2025) [2026] KECA 102 (KLR)

Court of Appeal
30 January 2026
FTF. Tuiyott
275 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed an applicant to file his appeal late because the delay was explained, unopposed, and caused no prejudice to the other side.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi, delivered by Tuiyott, JA on 30th January 2026, on a notice of motion dated 16th May 2025 in which Richard Ondiek Ayusa sought leave to appeal out of time against a judgment of the High Court (Oguttu Mboya, J) delivered on 22nd February 2024. The affidavit in support explained that although the notice of appeal was filed on time, the record of appeal was inadvertently filed in the High Court instead of the Court of Appeal on 26th June 2024, a mistake attributed to counsel, with a receipt for payment of fees exhibited. The respondents did not oppose the application and the explanation was not controverted. Applying the settled parameters for extension of time restated in Fakir Mohamed v Joseph Mugambi & 2 others [2005] KECA 340 (KLR), the court held that the delay was not overly inordinate, the explanation was plausible, and no prejudice would be suffered by the respondents if the order was granted. The motion was allowed, with the record of appeal to be filed and served within thirty days, and no order as to costs was made. The ruling is not a decision on the merits of the intended appeal and does not disturb the High Court judgment; it merely opens the door for a properly filed appeal.

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 to appeal out of time against the judgment of the High Court delivered on 22nd February 2024

Key legal issues

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01

Whether the delay in filing the record of appeal should be excused and time extended

Holding

The delay was not overly inordinate, the explanation (the record was inadvertently filed in the High Court instead of the Court of Appeal, a mistake blamed on counsel) was plausible and uncontroverted, and the unopposed application caused no prejudice to the respondents.

Reasoning

The court applied the settled extension-of-time parameters from Fakir Mohamed v Joseph Mugambi. The notice of appeal was filed on time; only the record was filed in the wrong court through counsel's inadvertence. The respondents did not oppose and the applicant's explanation was not controverted, so the court saw no reason to disbelieve it and no prejudice was demonstrated. On that basis the discretion was exercised in the applicant's favour, with directions on filing the record within thirty days and no order as to costs.

p. 1

Legal principles established

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  • The Court of Appeal's discretion to extend time for filing an appeal is exercised within parameters restated time without number, and where the respondents do not oppose an uncontroverted, plausible explanation for delay, extension cannot prejudice them.

Court orders

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  1. 1.Leave granted to appeal out of time; the notice of motion dated 16th May 2025 is allowed
  2. 2.The record of appeal shall be filed and served within thirty (30) days of the order
  3. 3.No order as to costs

The bench

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

FT
majority

Wrote the judgment

On appeal from
High Court
Not stated in the judgment
Jurisdiction invoked
Inherent/appellate discretion of the Court of Appeal to extend time (rule-based discretion; no specific constitutional or statutory provision quoted in the judgment)

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.

The motion is not opposed and the explanation given by the applicant is not controverted. I have no reason to disbelieve it.
p. 1Uncontroverted explanation for delay
In exercise of the discretion granted to the Court, exercisable within the parameters restated time without number by this Court (see for example Fakir Mohamed v Joseph Mugambi & 2 others [2005] KECA 340 (KLR)), I allow the notice of motion dated 16th May 2025.
Discretion to extend time
The record of appeal shall be filed and served within thirty (30) days hereof. No order as to costs.
p. 2Final orders

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, "Ayusa v Macharia & another (Civil Application E310 of 2025) [2026] KECA 102 (KLR)", Case Analysis (2026). Notice of motion dated 16th May 2025 (extension-of-time application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/102/eng@2026-01-30

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