Munikah (Appealing as one of the Personal Representatives and the Executor/Administrator of the Will of the Estate of Alfred Josse Nakaya) v Wangai & another (Civil Application E472 of 2022) [2023] KECA 223 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time to appeal because the applicant's claimed illness appeared only in submissions, not sworn evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of approximately eight months in filing the notice of appeal was satisfactorily explained
The application fails because the delay was not satisfactorily explained; sickness was raised only in submissions, not evidenced by affidavit, and the post-illness period was unexplained
The court applied the settled rule 4 principles from Muringa and Fakir Mohamed, requiring explanation of the delay, prejudice, conduct and arguability. The alleged hospitalisation from March to September 2022 appeared only in submissions and the annexed medical note was absent; the annexure SMM2 to the affidavit was instead a copy of the title. The applicant did not explain why his advocate, present at the ruling, took no steps, nor the further three-month delay from September to December 2022.
Whether facts asserted for the first time in submissions can support an application
No - submissions do not constitute evidence unless expressly adopted as such
Relying on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, the court held that the applicant's claim of indisposition, raised only in submissions, could not stand as evidence. Evidence must be placed before the court by affidavit; a court should not make guesses on unsubstantiated assertions, and a party owes the court a convincing explanation.
Legal principles established
#- Submissions cannot take the place of evidence and cannot be used to introduce facts not pleaded in affidavits unless expressly adopted as such
- An applicant under rule 4 must satisfactorily explain the length of and reason for the delay as the first ground; failure on that ground is fatal to the application irrespective of other factors
- A party asserting sickness as an excuse for delay owes the court a convincing, evidenced explanation of the indisposition and its effect on the ability to instruct counsel
Court orders
#- 1.The application dated December 8, 2022 is dismissed
- 2.Costs of the application to the 1st respondent
- On appeal from
- Environment and Land Court
- ELC No. 258 of 2020
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2022
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.
- Njoroge v Odhiambo & 3 others (Civil Application E399 of 2025) [2026] KECA 211 (KLR)[2026] KECA 211 (KLR)6 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Munikah (Appealing as one of the Personal Representatives and the Executor/Administrator of the Will of the Estate of Alfred Josse Nakaya) v Wangai & another (Civil Application E472 of 2022) [2023] KECA 223 (KLR)", Case Analysis (2023). Civil Application No. E010 of 2023 (as inferred from the rule 4 application dated December 8, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/223/eng@2023-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.