Maragaret Gacigi Gecaga v Udi Mareka Gecaga & another [2021] KECA 553 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal, ruling that a short, well-explained delay and an advocate's mistake should not defeat a client's right to appeal.
What this practically means
#Executive summary
#Key legal issues
#Length and explanation of the delay
The delay of one month and twelve days was not so inordinate as to disentitle the applicant to relief, and awaiting the full text of the ruling was a reasonable explanation since Rule 75(3) requires a notice of appeal to state whether the appeal targets the whole or part of a decision
Although the ruling was delivered on 28th July 2020, its full text was only released on 26th August 2020. Rule 75(3) obliges a party filing a notice of appeal to indicate whether it is intended to appeal against the whole or part only of the decision. The applicant's advocate therefore had to await and peruse the full text before forming an informed decision on whether and to what extent to appeal. The court found that explanation plausible, reasonable and sustainable, and held the delay not inordinate.
Arguability of the intended appeal
The intended appeal was arguable on the pleaded issue of fraudulent transfer of eight Old Muthaiga properties, despite the absence of a draft memorandum of appeal
Failure to annex a draft memorandum of appeal is not fatal; arguability can be discerned from other supporting facts. Paragraph 9 of the supplementary affidavit identified an intended ground touching on fraudulent transfer of eight properties in Old Muthaiga, including the applicant's matrimonial home. The court applied the principle that a single arguable point suffices and was satisfied the intended appeal was arguable.
Alleged nondisclosure of material facts by the applicant's advocate
The advocate's failure to disclose the respondents' application E298 of 2020 could not be visited on the applicant, who was an innocent client, absent demonstrated fault or exceptional circumstances
Following the approach in Owino Ger, the court declined to punish a client for an advocate's procedural default where instructions had been timeously given. The same advocate who received the respondents' process swore the supporting and supplementary affidavits and should have disclosed it, but the court found it too punitive to deprive an innocent client of her constitutionally entrenched appellate right absent exceptional circumstances.
Legal principles established
#- Extension of time is not a right of a party but an equitable remedy available to a deserving party at the court's discretion, and the applicant bears the burden of laying a basis for it
- Failure to annex a draft memorandum of appeal is not fatal to an application for extension of time; arguability can be discerned from other supporting facts
- One arguable point is sufficient for an intended appeal to qualify as arguable
- A litigant's appellate right, being constitutionally entrenched, should not be defeated by an advocate's procedural default absent exceptional circumstances
Court orders
#- 1.The applicant was granted fourteen (14) days from delivery of the ruling to lodge and serve a notice of appeal and thereafter proceed according to law
- 2.Costs of the application were granted in the intended appeal
- On appeal from
- High Court of Kenya
- Nairobi HC Misc. No. E087 of 2018
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules and section 3A of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njuki Maringa (the Administrator of The Estate of Maringa Kibisho) v James Mwangi Maina & 4 others[2026] KECA 1337 (KLR)3 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Maragaret Gacigi Gecaga v Udi Mareka Gecaga & another [2021] KECA 553 (KLR)", Case Analysis (2021). Civil Application No. E316 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/553/eng@2021-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.