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)
The bottom line
#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
#Executive summary
#Key legal issues
#Factors governing extension of time under Rule 4
The court applies the settled guidelines: length of delay, reason for delay, arguability of the intended appeal, and prejudice to the respondent.
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.
Effect of inordinate and unexplained delay
A two-year delay with no credible explanation is inordinate and justifies refusal of extension of time.
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.
Mistake of counsel as an excuse for delay
Blame shifted to counsel does not suffice; parties must show interest in and follow up their cases.
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.
Evidentiary status of counsel's affidavit on the applicant's state of mind
Facts deposed by counsel about the applicant's belief that a Notice of Appeal had been filed are hearsay and inadmissible.
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.
Legal principles established
#- 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
#- 1.The application for extension of time is dismissed
- 2.Costs of the application are awarded to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.