Isaac Gachagua, Hussein Godana & Peter B.N. Njiru (Suing as OFficials of Jada “B” Jua Kali Association) & another v Kenya Power & Lighting Company Limited & another (Civil Application E007 of 2025) [2025] KECA 878 (KLR)
The bottom line
#The Court of Appeal refused to extend time for filing an appeal because the applicants blamed their advocate for a delay their own failed review application disproved.
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 firm of Kadenge Associates Advocates should be granted leave to come on record for the applicants
- 2.Whether the applicants should be granted leave to lodge an appeal out of time against the ELC judgment of 26th September 2024
Key legal issues
#Whether the applicants established a basis for extension of time under Rule 4 of the Court of Appeal Rules
The application fails. The applicants gave no credible explanation for the approximately three-month delay: their explanation that the former advocate did not inform them of the judgment was contradicted by their own application to the ELC for review of that judgment, demonstrating awareness of it.
The court applied the Salat principles that extension of time is an equitable, discretionary remedy whose burden lies on the applicant, and the Fakir Mohamed list of factors. It found the delay of about three months unexplained, noted the applicants' lack of candour in blaming their erstwhile advocates while they had themselves sought review of the judgment, and held the burden of proof was not discharged.
Whether a party who has sought review may nonetheless appeal the original judgment
Following Gerald Kithu Muchanje v Catherine Muthoni Ngare, a party who elects review cannot, after rejection of the review, appeal against the original judgment; an appeal lies only against the outcome of the review.
The court endorsed the Muchanje statement of the law under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. Although the applicants' pursuit of an appeal after dismissal of review was noted, the court's primary basis for dismissal was failure to explain the delay to the court's satisfaction under the Rule 4 criteria.
Legal principles established
#- Extension of time under Rule 4 is an equitable remedy, not a right; the applicant bears the burden of laying a basis to the court's satisfaction, explaining the delay, and showing absence of prejudice, on a case-by-case basis.
- A party who applies for review of a judgment cannot, after the review is rejected, elect to appeal against the original judgment; an appeal lies only on the outcome of the review application.
Court orders
#- 1.The application dated 2nd January 2025 is dismissed
- 2.Costs of the application awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court
- ELC Case No. 1453 of 2007
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time) and Rule 77(2) (time to lodge notice of appeal)
Relief refused
#Prayer for Kadenge Associates Advocates to come on record
The firm already appears to be the applicants' only advocates; the prayer was unnecessary
Extension of time to lodge the appeal
Applicants failed to discharge the burden of explaining the approximately 3-month delay and lacked candour, having first sought review of the same judgment
Costs
The application is dismissed with costs to the 1st respondent
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.
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
The period of delay, the reason for the delay, (possible) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the efiect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance-are all relevant but not exhaustive factor.
The applicant wants to have a second bite of the same cherry and he cannot be permitted to do so.
The application fails and is hereby dismissed with costs to the 1st respondent.
Issues in the judgment
#The judgment contains OCR/typographical errors, e.g. 'behald' for 'behalf' and 'sufiered' for 'suffered', suggesting the source text is not cleanly transcribed.
The substantive parties' names, especially the 2nd respondent and the full title of the intended appeal, are not fully set out in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaac Gachagua, Hussein Godana & Peter B.N. Njiru (Suing as OFficials of Jada “B” Jua Kali Association) & another v Kenya Power & Lighting Company Limited & another (Civil Application E007 of 2025) [2025] KECA 878 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 2nd January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/878/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.