Munyarare v Maina (Civil Application E117 of 2025) [2026] KECA 565 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time to appeal because the litigant had chosen review first, stressing that every day of delay needs explaining.
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 has made out a case for extension of time to file and serve the notice of appeal, memorandum of appeal and record of appeal under Rule 4 of the Court of Appeal Rules, 2022
- 2.Whether the applicant gave a plausible and reasonable explanation covering the entire period of delay
- 3.Whether granting the extension would prejudice the respondent
Key legal issues
#Whether the applicant's choice of review over appeal constitutes a reasonable explanation for the delay
No. The applicant consciously elected review, and having failed in review, cannot treat the dismissal of review as a basis for extending time to appeal; the delay from 11th April 2024 remains unexplained and the appeal decision is an afterthought
The court held that a litigant exercises party autonomy in choosing between remedies and must bear the consequences. The judgment was delivered on 11th April 2024, yet no letter requesting proceedings or signifying intention to appeal was ever lodged. The applicant's explanation covered only part of the delay and the decision to appeal appeared to be an afterthought, so the discretion was not triggered.
The applicable principles for extension of time under Rule 4
Extension of time is an equitable remedy available only to a deserving party; the applicant bears the burden of laying a basis, and a plausible explanation for the entire delay is the crucial trigger for the court's discretion
Adopting the Salat principles, the court restated that extension is not a right, is decided case by case, and requires a reasonable explanation, absence of prejudice, absence of undue delay, and in some cases public interest. Without a plausible explanation the court will not extend time even where the appeal has merit.
Whether prejudice to the respondent and closure of litigation weigh against extension
Yes. The trial judgment was delivered on 27th March 2023 and litigation must come to a close; hard-earned judgments should not be lightly disturbed
The court emphasised finality of litigation and the need to assess whether granting extension would unfairly prejudice the respondent. Given the age of the trial judgment and the applicant's unexplained laxity, the interests of justice favoured refusal of the indulgence.
Legal principles established
#- Extension of time is an equitable discretionary remedy, not a right, and requires a plausible explanation covering the entire period of delay; a plausible explanation is the key that unlocks consideration of other factors such as prospects of success
- A litigant who exercises party autonomy by electing one remedy (review) cannot later invoke the unexercised remedy (appeal) as an explanation for delay
- Even a one-day delay must be explained; hard-earned judgments should not be lightly disturbed
Court orders
#- 1.The applicant's application dated 5th November 2025 is dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (first Appellate Court, Nyandarua HCCA No. E089 of 2023)
- Nyandarua HCCA No. E089 of 2023
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2022
Relief refused
#Extension/enlargement of time to file and serve the notice of appeal, memorandum of appeal and record of appeal
The applicant consciously elected to pursue review instead of appeal, gave no explanation covering the whole period of delay, and the decision to appeal was an afterthought; litigation must come to a close
Costs of the application
Costs were awarded against the applicant to the respondent
Costs
The application dated 5th November 2025 is dismissed with costs to the respondent.
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.
Extension of time is not right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
A plausible explanation, however, is the "key that unlocks the door" to this balancing exercise.
He cannot come back and say, since his application for review was dismissed, he should be granted leave to appeal. The discretion under Rule 4 is wide, but it is not elastic to the extent it can cover all situations.
An applicant seeking extension of time must give a full, reasonable, and acceptable explanation covering the entire period of delay. Even a one-day delay must be explained.
Accordingly, I am NOT inclined to exercise my discretion in the applicant’s favour. The applicant’s application dated 5th November 2025 is hereby dismissed with costs to the respondent.
Issues in the judgment
#The judgment dates the first Appellate Court judgment as 11th April 2024 in paragraph 1 but the applicant's supplementary affidavit paragraph records it as delivered on 11th November 2024
The replying affidavit opposing the application is described as filed 'In opposition to the application, the applicant filed a replying afidavit' although it appears to have been filed by the respondent, and the respondent's submissions were still outstanding at the time of the ruling
The judgment is dated 16th March 2026 but recites being written on '16th March 2026 at 9.05 a.m' while the application record includes a replying affidavit dated 17th March 2025, a date preceding the application date of 5th November 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyarare v Maina (Civil Application E117 of 2025) [2026] KECA 565 (KLR)", Case Analysis (2026). Application dated 5th November 2025 (Nyandarua HCCA No. E089 of 2023 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/565/eng@2026-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.