Lang’at & another v Jepchumba, Priscilla, Birir Sammy and Rotich (All suing as legal representatives of the Estate of Peter Kipkorir Rotich - Deceased) & 4 others (Civil Appeal (Application) E105 of 2024) [2025] KECA 548 (KLR)
The bottom line
#Kenya's Court of Appeal allowed an 8-month-late appeal because the delay was explained and the other side suffered no uncompensated prejudice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants should be granted an extension of time to file the Memorandum of Appeal and Record of Appeal out of the 60-day period stipulated by the Rules
- 2.Whether the absence of evidence that proceedings were sought and of a certificate of delay defeats the application
- 3.Whether the delay of 8 months was inordinate and satisfactorily explained
- 4.Whether the intended appeal is frivolous or arguable
- 5.Whether the respondents would suffer prejudice if the extension were granted
Key legal issues
#Effect of failure to bespeak proceedings and obtain a certificate of delay
The absence of a certificate of delay does not oust the Court's jurisdiction under Rule 4; it simply means time was never frozen, leaving extension of time as the only avenue.
The purpose of bespeaking proceedings and copying the letter to other parties is to freeze time during preparation of proceedings. Where that was not done, a certificate of delay serves no purpose. It is precisely the failure to comply with that procedure that compels an intending appellant to seek extension of time, so the application remains properly within Rule 4.
Whether the 8-month delay was inordinate and excusable
Although 8 months is a long period, the delay was justified by the trial court's delay in supplying proceedings and counsel's absence attending his sick child in India.
The litmus test is whether the delay is inordinate and inexcusable, judged not arithmetically but on all circumstances. Counsel's medical emergency with his son's treatment abroad, plus the late supply of proceedings, explained the delay. Though the matter could have been handled by another advocate in the firm, mistakes of counsel should not necessarily be visited on the client.
Arguability of the intended appeal
The draft 10 grounds of appeal are not frivolous; arguability is a peripheral consideration where other conditions are met and is not for determination by a single Judge.
The consideration of chances of success is only a 'possible' factor per Mutiso and does not apply in all cases. Arguable means non-frivolous and fit to be argued fully; whether the grounds will succeed is not within a single Judge's province. The annexed draft Memorandum raising 10 grounds sufficed.
Prejudice to the respondents
No prejudice was demonstrated that could not be compensated by costs; the application was allowed.
Prejudice or lack of it is highly relevant. The respondents did not contend they would suffer prejudice incapable of compensation by an award of costs. Costs are the panacea that heals every sore in litigation, and defaults curable by costs should not nullify proceedings absent fraud or overreaching conduct.
Legal principles established
#- The Court has unfettered discretion under Rule 4 to extend time, but it must be exercised judicially upon reasons, guided by the settled factors: period of delay, reasons for delay, arguability (possibly), and prejudice to the respondent.
- Where the letter bespeaking proceedings was not copied to the other parties, time is not frozen, a certificate of delay is of no use, and the only avenue open is an application for extension of time.
- Whether delay is inordinate is not a matter of arithmetic; all surrounding circumstances, including the reason for the delay, must be considered.
- Arguability of the intended appeal plays a peripheral role in Rule 4 applications where the other conditions are fulfilled, and does not outweigh all other relevant factors.
- Absent fraud or intention to overreach, an error or default curable by payment of costs should not nullify legal proceedings; cases ought to be decided on their merits rather than on technicalities.
Court orders
#- 1.The Notice of Motion dated 18th November 2024 is allowed
- 2.Time limited for filing and service of the Memorandum and Record of Appeal is extended by a further period of 14 days from the date of the ruling
- 3.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court (trial court, judge not named)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2022 and Sections 3A and 3B of the Appellate Jurisdiction Act
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I am therefore satisfied that the reason given for the delay is in the circumstances of this case justifiable.
In the circumstances of this case, I find that this is a just and proper case to exercise discretion in favour of the applicant. I accordingly allow the Notice of Motion dated 18th November 2024. I extend the time limited for filing and service of the Memorandum and Record of Appeal with a further period of 14 days from the date of this ruling.
The costs of this application are awarded to the respondents.
extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court
Where no such letter was sent, the time is not frozen and a certificate of delay becomes of no use.
Issues in the judgment
#Quoted passage from Boniface Njuguna Gakuru contains garbled text, including reference to 'the 02 principle' apparently meaning the overriding objective principle, and an incomplete sentence ('and the I have also taken into account').
The judgment refers to the matter as a 'reference' and 'appeal' with a counterclaim and respondents described variously (11st respondent), suggesting typographical errors in the original.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lang’at & another v Jepchumba, Priscilla, Birir Sammy and Rotich (All suing as legal representatives of the Estate of Peter Kipkorir Rotich - Deceased) & 4 others (Civil Appeal (Application) E105 of 2024) [2025] KECA 548 (KLR)", Case Analysis (2025). Civil Application (Notice of Motion dated 18th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/548/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.