Not stated in judgment (4th Respondent/Applicant's Notice of Motion dated 12th June, 2025)
The bottom line
#A Kenyan court refused to extend time for an appeal because a seven-month delay was blamed on the lawyer, which doesn't excuse a party's own inaction.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC to extend time for filing a Notice of Appeal to the Court of Appeal
The court has jurisdiction under Section 7 of the Appellate Jurisdiction Act where the intending appellant has taken no step before the Court of Appeal; the objection on jurisdiction failed
The court distinguished Rule 4 of the Court of Appeal Rules from Section 7 of the Appellate Jurisdiction Act, adopting the reasoning in Loise Chemutai Ngurule and Sammy Kuria Ndungu that both courts hold the power concurrently, the High Court's authority being limited to first-time applications before any step is taken at the Court of Appeal.
Whether leave to appeal out of time should be granted
Refused: the seven-month delay was inordinate and unexplained; blame of former Counsel does not excuse inaction; no draft memorandum of appeal was provided to demonstrate arguability
Applying Leo Sila Mutiso and Nicholas Kiptoo Arap Korir Salat, the court weighed the length of and reason for the delay, arguability of the appeal and prejudice to the respondent. The applicant participated in proceedings, was served with notice of judgment, offered no evidence of diligence, and disclosed no grounds of appeal; granting the orders would delay enjoyment of a valid judgment without exceptional circumstances.
Whether stay of execution pending appeal should be granted
Refused as moot: without leave to appeal, there is no basis for a stay pending appeal
Under Order 42 Rule 6(1) and (2) and Vishram Ravji Halai, stay requires sufficient cause, substantial loss, security and lack of unreasonable delay. The court did not reach these criteria because the foundational prayer for leave to appeal out of time had failed, leaving the stay prayer without an anchor.
Legal principles established
#- Section 7 of the Appellate Jurisdiction Act confers jurisdiction on the High Court (and courts of equal status) to extend time for filing a Notice of Appeal to the Court of Appeal, but only where no Notice of Appeal has been lodged in the Court of Appeal and no step taken there; once any step is taken, jurisdiction shifts exclusively to the Court of Appeal
- Litigation belongs to a litigant and not to Counsel; a party cannot escape the consequences of inaction by shifting blame to Counsel
Court orders
#- 1.The Notice of Motion dated 12th June, 2025 fails and is dismissed with costs
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; Order 40 Rules 1, 2 and 3 & Order 51 Rule 1 of the Civil Procedure Rules; Section 7 of the Appellate Jurisdiction Act (Cap 9)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Not stated in judgment (4th Respondent/Applicant's Notice of Motion dated 12th June, 2025)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1056/eng@2026-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.