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Court of AppealDismissedCivil Application (as stated in the judgment; number not expressly given beyond counsel's reference to Notice of Motion dated 1st July 2024)· [2025] KECA 302 (KLR)

Wanjau (Suing as the administratrix of the Estate of Sammy Njoroge Maina - Deceased) v Gikaria & another (Civil Application E337 of 2024) [2025] KECA 302 (KLR)

Court of Appeal of Kenya
21 February 2025
1,415 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse a two-year appeal delay, confirming that blaming your lawyer is not enough to revive a dead appeal.

What this practically means

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Executive summary

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The applicant, Stella Muthoni Wanjau, moved the Court of Appeal by Notice of Motion dated 1st July 2024 under Rule 4 of the Court of Appeal Rules, 2022 seeking extension of time to file and serve a Notice of Appeal against a judgment of the Nairobi Environment and Land Court delivered on 17th February 2022, in which she was ordered to give vacant possession of the suit premises to the respondent within 60 days. The application, supported only by an affidavit of her counsel, was opposed by the respondent, who maintained that the two-year delay was inordinate, unexplained, and that he was entitled to enjoy the fruits of his judgment. The Court, per W. Karanja, JA, restated the settled Rule 4 factors - length of delay, reason for delay, arguability of the intended appeal, and prejudice to the respondent - and stressed that the unfettered discretion must be exercised judicially and not on whim or sympathy. The Court held that counsel's affidavit assertions about the applicant's belief that a Notice of Appeal had been filed were hearsay and inadmissible, leaving no credible explanation for the delay. Relying on authority that a litigant cannot simply blame counsel, the Court found the two-year delay inordinate and the intended appeal unsupported by credible evidence. The application was dismissed with costs to the respondent, allowing execution to proceed.

Key legal issues

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01

Factors governing extension of time under Rule 4

Holding

The court applies the settled guidelines: length of delay, reason for delay, arguability of the intended appeal, and prejudice to the respondent.

Reasoning

Relying on its previous decisions in Henry Mukora Mwangi, Mwangi v Kenya Airways and Leo Sila Mutiso, the court restated the well-settled factors. The unfettered discretion must nonetheless be exercised judicially, not on sympathy or caprice. The applicant bore the burden of giving a credible explanation for the delay, which she failed to do.

p. 3
02

Effect of inordinate and unexplained delay

Holding

A two-year delay with no credible explanation is inordinate and justifies refusal of extension of time.

Reasoning

The only affidavit supporting the application was sworn by counsel, and facts deposed to about the applicant's belief that a Notice of Appeal had been filed were hearsay. Absent an affidavit from the applicant, no explanation for failing to file the Notice of Appeal in time existed, and the two-year delay was plainly inordinate.

p. 3
03

Mistake of counsel as an excuse for delay

Holding

Blame shifted to counsel does not suffice; parties must show interest in and follow up their cases.

Reasoning

Citing Rajesh Ragani v Fifty Investments Limited and Habo Agencies Limited v Wilfred Othiambo Musingo (relied on by the respondent), the court held that a litigant cannot simply blame the advocate on record for all transgressions in the conduct of litigation; the applicant had to demonstrate diligence, which she did not.

p. 3
04

Evidentiary status of counsel's affidavit on the applicant's state of mind

Holding

Facts deposed by counsel about the applicant's belief that a Notice of Appeal had been filed are hearsay and inadmissible.

Reasoning

There was no affidavit sworn by the applicant herself. Counsel's deposition that the applicant believed the Notice of Appeal had been filed concerned events and states of mind outside counsel's personal knowledge, and the court expressly treated such material as hearsay and inadmissible.

p. 2

Legal principles established

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  • The discretion under Rule 4 is unfettered but must be exercised judicially, guided by the length of and reason for delay, the chances of the appeal succeeding, and the prejudice to the respondent.
  • Blaming an advocate for failures in the conduct of litigation is not, by itself, sufficient to excuse delay; litigants must follow up their cases.

Court orders

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  1. 1.The application for extension of time is dismissed
  2. 2.Costs of the application are awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rules, 2022Rule 4

Cases cited (5)

  • Henry Mukora Mwangi v Charles Gichina Mwangi
    Civil Application No. Nai. 26 of 2004
  • Mwangi v Kenya Airways Ltd
    [2003] KLR 486
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. Nai. 255 of 1997 (unreported)
  • Rajesh Ragani v Fifty Investments Limited and Another
    [2016] eKLR
  • Habo Agencies Limited v Wilfred Othiambo Musingo
    [2015] eKLR
On appeal from
Nairobi Environment and Land Court (ELC)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (extension of time to file and serve a Notice of Appeal)

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, "Wanjau (Suing as the administratrix of the Estate of Sammy Njoroge Maina - Deceased) v Gikaria & another (Civil Application E337 of 2024) [2025] KECA 302 (KLR)", Case Analysis (2025). Civil Application (as stated in the judgment; number not expressly given beyond counsel's reference to Notice of Motion dated 1st July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/302/eng@2025-02-21

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