Mibei & another v Mibei & another (Civil Application E203 of 2025) [2026] KECA 567 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that applications for leave to appeal in civil matters must be filed within 14 days, with no extension possible under Rule 41(1)(b).
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 extension of time to seek leave to appeal against the ruling of 23rd October 2025
- 2.Whether an application for leave to appeal in a civil matter must be filed within 14 days as required by Rule 41 of the Court of Appeal Rules, 2022
- 3.Whether Rule 41(1)(b) is mandatory or directory
Key legal issues
#Whether Rule 41(1)(b) of the Court of Appeal Rules, 2022 is mandatory
It is mandatory. The use of 'shall' denotes obligation, and unlike Rule 41(2) and (3) on certification of general public importance, the drafters opened no window for extension of time in respect of leave applications under sub-rule (1)(b).
The court applied the ordinary rule of statutory construction that 'shall' is a word of command. It contrasted Rule 41(1)(a), which uses the permissive 'may', with Rule 41(1)(b), which uses 'shall'. It also noted that Rule 41(3) deliberately provides an out-of-time mechanism only for certification applications, showing the drafters consciously omitted one for leave applications under sub-rule (1)(b), despite being aware of Rule 4.
Effect of failure to seek leave within the prescribed period
The application for extension of time was incompetent and dismissed; an appeal or application filed without the mandated leave and outside the 14-day period cannot be rescued by extension of time in these circumstances.
The applicants neither sought leave from the trial court nor moved the Court of Appeal within 14 days. Their advocates' inadvertence and the 28-day delay did not satisfy the requirements for extension. The application was therefore 'dead on arrival' and had to be dismissed, though costs were spared given the family nature of the dispute.
Legal principles established
#- Rule 41(1)(b) of the Court of Appeal Rules, 2022 is mandatory: an application for leave to appeal to the Court of Appeal in a civil matter must be made within 14 days of the decision, and no window for extension of time is open in respect of that sub-rule
- The word 'shall' in a statutory provision imports a command and is mandatory, while 'may' is permissive or directory
Court orders
#- 1.The application dated 8th December 2025 is dismissed
- 2.No order as to costs, bearing in mind that this is a family dispute
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (Bomet)
- BOMET HCFP&A E047 of 2023
- Jurisdiction invoked
- Rule 4 and Rule 41 of the Court of Appeal Rules, 2022 (extension of time and leave to appeal in civil matters)
Relief refused
#Extension of time to seek leave to appeal and deemed filing of the notice of appeal
The applicants never applied for leave before the trial court and did not move the Court within the mandatory 14 days under Rule 41(1)(b); the application was therefore incompetent from the outset
Costs
No order as to costs, each party to bear their own costs implicitly, bearing in mind that this is a family dispute ('I dismiss it but make no order as to costs bearing in mind that this is a family dispute.')
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.
Therefore, the rule means what it says. The application must be filed within 14 days.
Ordinarily the words ‘shall’ and ‘must’ are mandatory and the word ‘may’ is directory.
By the time the drafters were writing sub rule (3), they were not writing on a clean slate. The ink in sub rule (1) had not dried, therefore, they were aware of the cognate provisions of sub rule 1(b), yet they did not open such a window.
Accordingly, this application was dead on arrival. I dismiss it but make no order as to costs bearing in mind that this is a family dispute.
Issues in the judgment
#The respondent's counsel cited the Salat case with two different renderings of the name in the judgment ('Nicholas K. Arap Salat' in paragraph 3 and 'Nicholas Kiptoo Arap SAlat' in paragraph 4); both are recorded in casesCited as written.
The judgment does not state the appeal number or the names of the parties in the heading; only the lower-court case number (BOMET HCFP&A E047 of 2023) is identifiable.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mibei & another v Mibei & another (Civil Application E203 of 2025) [2026] KECA 567 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/567/eng@2026-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.