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Court of AppealDismissedCivil Application E002 of 2026

Modugno & 4 others v Coco & 11 others

Court of Appeal
25 September 2026
1,314 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to forgive a three-month delay in serving an appeal notice, blaming a clerk was not good enough.

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 (Laibuta, JA) on the applicants' Notice of Motion dated 12th January 2026 seeking extension of time to serve a Notice of Appeal against a High Court ruling (M. Thande, J., Malindi, Petition No. E006 of 2024, dated 11th July 2025), or alternatively that service effected on 5th November 2025 be deemed timely. The Notice of Appeal was lodged on 18th July 2025 within the rule 77(2) period, but service occurred more than three months outside the rule 78 period. The applicants attributed the lapse to their advocate's clerk's inadvertent failure to serve, asserted arguability of the intended appeal, and claimed the respondents would suffer no prejudice. The 1st to 3rd respondents opposed, noting service occurred on 6th November 2025, over three months late, and that they had already filed an application in August 2025 to strike out the Notice. Applying rule 4 and the Sila Mutiso factors as elaborated in Chemaringo, the court found the appeal arguable on the low threshold but held the substantial delay unexplained: counsel, not a clerk, bears responsibility for service, and casual blame was unpersuasive. The court further found the Motion reactionary - filed five months after the respondents' striking-out application - and intended to steal a match, such that allowing it would pre-empt the respondents' pending application. The application was dismissed with costs to the 1st, 2nd and 3rd respondents. The decision below was not disturbed; this ruling concerns only appellate procedural compliance.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants should be granted extension of time to serve the Notice of Appeal dated 18th July 2025, or have service on 5th/6th November 2025 deemed timely
  2. 2.Whether the intended appeal is arguable
  3. 3.Whether the delay in serving the Notice of Appeal has been satisfactorily explained
  4. 4.Whether the respondents would suffer undue prejudice if the application were allowed

Key legal issues

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01

Whether the delay in serving the Notice of Appeal was satisfactorily explained

Holding

The delay of over three months was substantial and unexplained; attributing it to an advocate's clerk's inadvertence without counsel assuming responsibility was not persuasive.

Reasoning

The Notice of Appeal was lodged within time under rule 77(2) but served more than three months outside the period prescribed by rule 78. The court held that service is counsel's responsibility, and a casual statement blaming a clerk's inadvertent failure, without counsel assuming responsibility or proffering credible explanation, cannot satisfy the Chemaringo standard of valid and clear reasons.

p. 3
02

Whether the intended appeal is arguable

Holding

The intended appeal was found arguable on the low threshold, including the complaint that the trial judge made adverse findings against non-parties without a hearing.

Reasoning

Applying the low arguability threshold from the Sila Mutiso line of authorities, the court considered the numerous grounds in the Memorandum of Appeal dated 18th July 2025 and found the appeal arguable, notably the ground that the learned Judge made adverse findings against the applicants and a non-party without conducting a hearing on those allegations.

p. 3
03

Whether the respondents would suffer prejudice if the extension were granted

Holding

Allowing the belated, reactionary Motion would prejudice the respondents by pre-empting their pending striking-out application.

Reasoning

The applicants filed their Motion five months after the 1st to 3rd respondents' application of 15th August 2025 to strike out the Notice of Appeal for non-compliance with rule 78. The court viewed the Motion as intended to steal a match and subvert that application, and held that granting it would effectively determine the fate of the respondents' yet-to-be-heard application.

p. 3

Legal principles established

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  • Counsel bears personal responsibility for ensuring due process in service of clients' documents; casually blaming a clerk does not constitute a satisfactory explanation for delay.
  • A plausible and satisfactory explanation for delay is the key that unlocks the Court's flow of discretionary favour under rule 4.

Court orders

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  1. 1.The applicants' Notice of Motion dated 12th January 2026 seeking extension of time to serve the Notice of Appeal is dismissed
  2. 2.Costs of the application awarded to the 1st, 2nd and 3rd respondents

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya at Malindi
Petition No. E006 of 2024
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules - discretion to extend time for doing any act authorised or required by the Rules

Relief refused

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Extension of time to serve the Notice of Appeal, and deeming of service effected on 5th November 2025 as served on time

The delay of over three months was substantial and not satisfactorily explained; blame on a clerk was unpersuasive; the Motion was reactionary, filed five months after the respondents' striking-out application, and would prejudice the yet-to-be-heard respondents' application

p. 3

Costs

Application dismissed with costs to the 1st, 2nd and 3rd respondents

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.

Having carefully considered the applicants' Motion, the grounds on which it was founded, the affidavit in support, the oral submissions by learned counsel, the cited authorities and the law, I form the view that the application has no merit and is hereby dismissed with costs to the 1st, 2nd and 3rd respondents. It is so ordered.
p. 3Disposition - dismissal of extension of time application
Merely laying blame on a clerk by casually stating that he inadvertently failed to serve the notice is not by any means persuasive. Moreover, it is the responsibility of counsel to ensure due process in service of their clients.
p. 3Counsel's responsibility for service and explanation of delay
… the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained.
p. 3No minimum or maximum period of delay; explanation is key
In principle, the discretion is unfettered, and there is no limit to the number of factors the court would consider so long as they are relevant
p. 2Unfettered discretion under rule 4

Issues in the judgment

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minor

Delivery venue inconsistency: cause title says Malindi, delivery clause says Mombasa

minor

Date of service discrepancy between parties' pleadings and the court's finding

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, "Modugno & 4 others v Coco & 11 others", Case Analysis (2026). Civil Application E002 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1766/eng@2026-09-25

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