Athuman Nusura Juma v Afwa Mohamed Ramadhan [2016] KECA 395 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal because the ruling was delivered without notice, showing courts prioritise cases being heard on merit.
What this practically means
#Executive summary
#Key legal issues
#Extension of time under Rule 4 of the Court of Appeal Rules
The discretion is wide and unfettered and must be exercised judiciously; the old requirement of 'sufficient reason' was removed by the 1985 amendment.
Rule 4 confers jurisdiction to extend time on such terms as the Court thinks just. Previously a party needed 'sufficient reason', but that stricture was removed by amendment in 1985, leaving an unfettered discretion constrained only by the requirement that it be exercised judiciously. The factors are relevant but not exhaustive.
Reason for the delay
Delivery of the ruling on 8th June 2015 without notice, after confusion at the court on 5th June 2015, satisfactorily explained the failure to file the notice of appeal on time; any doubt was resolved in the applicant's favour.
There was undisputed confusion: the ruling was notified for 5th June 2015 but not delivered that day, and no further written notice was issued for the 8th June delivery. The court found it doubtful that the applicant and his advocates were aware of the new date, and gave the applicant the benefit of the doubt.
Length of delay and applicant's conduct
A delay of some 14 days, with prompt action once the ruling was known, was not inordinate and the applicant's conduct was not dilatory.
The applicant learnt of the ruling on 6th July 2015, obtained a copy the next day and filed the notice of appeal the same day, albeit 14 days out of time. Travelling to Nairobi to file the application was inconsistent with deliberate delay; further delay arose from file-transfer modalities not attributable to him.
Arguability of the intended appeal
The intended appeal was 'possibly' arguable; the respondent's contention that no right of appeal existed without leave was not an open-and-shut issue and the respondent remains free to strike out the appeal.
The court prefixes the chances-of-success factor with 'possibly' precisely to avoid determining merits finally at this stage. The leave issue raised by the respondent was left open, with the respondent at liberty to strike out the appeal if filed without a right of appeal.
Prejudice to the respondent and overriding objective
Any prejudice was not insurmountable since the appeal could be heard in Malindi in real time, and the overriding objective favoured granting the extension notwithstanding the long litigation history.
Although the litigation had dragged on, the applicant was entitled to exercise his right of appeal, and the appeal could be heard and determined in Malindi in real time, minimising prejudice. The overriding objective favours fair, just, speedy and proportionate disposal, and determination on merit rather than on procedural lapses.
Legal principles established
#- The discretion under Rule 4 of the Court of Appeal Rules to extend time is wide and unfettered, and must be exercised judiciously on relevant factors including delay, reason for delay, possible chances of success and prejudice to the respondent.
- Whether an intended appeal has merits is not determined with finality on an extension-of-time application; the chances-of-success factor is only 'possibly' considered.
- Following the overriding objective and Article 159 of the Constitution, courts strive to determine disputes on merit without being unduly constrained by procedural lapses.
Court orders
#- 1.The motion dated 6th August 2015 is allowed; time extended so that the notice of appeal lodged on 7th July 2015 is deemed duly lodged
- 2.The applicant to file and serve a notice of appeal upon the respondent within 7 days from the date of the ruling
- 3.The applicant to thereafter file and serve the record of appeal within 21 days from the date of filing the notice of appeal
- 4.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- High Court of Kenya at Mombasa
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretion to extend time), exercised by a single Judge of Appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Solfin Solutions Ltd v Mwakima (Civil Application E070 of 2025) [2026] KECA 1566 (KLR)[2026] KECA 1566 (KLR)31 Jul 2026applied
- Nyandege v Republic (Criminal Application E025 of 2026) [2026] KECA 1347 (KLR)[2026] KECA 1347 (KLR)7 Jul 2026
- Mturi & another v Diamond Trust Bank Kenya Limited & another (Civil Appeal (Application) E142 of 2025) [2026] KECA 54 (KLR)[2026] KECA 54 (KLR)30 Jan 2026applied
- Mwahereria & another v Mohamed Junior (Civil Application E083 of 2025) [2026] KECA 57 (KLR)[2026] KECA 57 (KLR)30 Jan 2026followed
- Stephen (Suing as the legal Representative of the Estate of Stephen Munyao Kini (Deceased)) v Gulf Stream Investment Limited (Civil Application E007 of 2025) [2025] KECA 1583 (KLR)[2025] KECA 1583 (KLR)3 Oct 2025applied
Cite this brief
#Cite this brief
Caselaw, "Athuman Nusura Juma v Afwa Mohamed Ramadhan [2016] KECA 395 (KLR)", Case Analysis (2016). Civil Application (as stated: Notice of Motion dated 6th August 2015; Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/395/eng@2016-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.