Chief of Kenya Defence Forces & another v Etyang (Civil Application E128 of 2025) [2026] KECA 175 (KLR)
The bottom line
#Kenya's Court of Appeal gave litigants more time to appeal to the Supreme Court because their advocate's resignation caused a communication breakdown, not their own neglect.
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 applicants should be granted enlargement of time to lodge and serve a notice of appeal to the Supreme Court out of time
- 2.Whether the reasons given for the delay in seeking leave to appeal to the Supreme Court within the prescribed fourteen days are excusable
- 3.Whether the respondents would suffer prejudice if the enlargement is granted
Key legal issues
#Whether the applicants' explanation for the delay was excusable so as to warrant enlargement of time
The Court found the explanation excusable. The delay was occasioned by a breakdown in communication following the resignation of the advocate with conduct of the case, and the applicants acted promptly once aware of the judgment. The respondent's substantive objections are for the full bench at certification.
The Court applied the Fakir Mohamed factors. The delay flowed from the resigning advocate's communication breakdown with the client hierarchy and the transition challenge of appointing a new advocate. Upon learning of the judgment, the applicants moved promptly. The Court held that the respondent's arguments against the appeal belong to the certification stage before the full bench, not to this interlocutory application, and so the extension was granted despite the respondent's medical-condition prejudice claim.
Legal principles established
#- Rule 4 of the Court of Appeal Rules confers an unfettered discretion, guided by settled principles, to enlarge time for taking any step prescribed by the Rules; relevant factors include the period and reason for delay, the chance of the appeal succeeding, prejudice to the respondent, and whether the matter raises issues of public importance.
Court orders
#- 1.The application is allowed
- 2.The applicants are granted enlargement of time to file the notice of appeal indicating their intention to appeal to the Supreme Court
- 3.The notice of appeal shall be filed and served within seven (7) days
- 4.The respondent shall have the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Not stated
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretion to enlarge time)
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...is unfettered, there is no limit to the number of factors the Court would consider so long as they are relevant.
The reasons given by respondent in opposing the application will largely come into play and be considered by the full bench of this Court when determining whether or not to certify the intended appeal by the applicants as suitable for consideration by the Supreme Court.
The applicants are granted enlargement of time to file the notice of appeal indicating their intention to appeal to the Supreme Court. The said notice of appeal shall be filed and served within seven (7) days. The respondent shall have the costs of the application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chief of Kenya Defence Forces & another v Etyang (Civil Application E128 of 2025) [2026] KECA 175 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/175/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.