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Court of AppealAllowedCourt of Appeal Application dated May 25, 2021 (Eldoret)· [2025] KECA 1042 (KLR)

Anguko v Lit & another (Criminal Application E088 of 2021) [2025] KECA 1042 (KLR)

Court of Appeal of Kenya
12 June 2025
JMJ. Mativo
1,561 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal allowed a late appeal record in a succession case, ruling that a reasonable, well-explained delay—here partly due to Covid-19—can be forgiven.

What this practically means

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Executive summary

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This was a single-judge ruling of the Court of Appeal at Eldoret on a notice of motion dated May 25, 2021 brought under Rule 4 of the Court of Appeal Rules, 2010, seeking extension of time to file and serve a record of appeal from the judgment of H.K Chemitei, J. delivered on May 5, 2020 in Kitale High Court Succession No. 167 of 2011. The applicant had been granted leave to appeal on October 27, 2020 and filed a notice of appeal on November 2-3, 2020, which was served with a letter bespeaking proceedings on November 17, 2020. The 1st respondent opposed, arguing that the court lacked jurisdiction because leave had not been sought under section 50(1) of the Law of Succession Act and Rule 39 of the Probate and Administration Rules, and that the notice of appeal was filed outside the 14 days granted and was therefore deemed withdrawn under rule 85. The court framed a single question: whether the applicant met the threshold for extension of time. Relying on the Supreme Court's decision in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, the court held that the notice of appeal was lodged within the 14 days allowed and was properly on record. The certificate of delay dated April 22, 2021 excluded the period from November 9, 2020 to March 24, 2021, and the residual delay of 15 days was excusable given the Covid-19 pandemic. The application was allowed, with extension of time to file and serve the record of appeal within 30 days, and costs to abide the outcome of the intended appeal.

Key legal issues

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01

Whether the notice of appeal was filed out of time and is properly on record

Holding

The notice of appeal dated November 2, 2020 and lodged on November 9, 2020 was within the 14 days granted by the superior court on October 27, 2020; leave was properly sought and granted and the notice of appeal is properly on record.

Reasoning

The court found that the applicant had been granted leave on October 27, 2020 to file the notice of appeal within 14 days and the main appeal out of time. The notice dated November 2, 2020 was lodged on November 9, 2020, within the 14-day period. The 1st respondent's objection, founded on rule 85 of the Court of Appeal Rules (deemed withdrawal), therefore failed because the filing was within the ordered period.

p. 3
02

Whether the delay in filing the record of appeal was excusable

Holding

The delay of 15 days after proceedings became ready was excusable and not inordinate, having regard to the Covid-19 pandemic and the certificate of delay issued on April 22, 2021.

Reasoning

The applicant annexed a certificate of delay showing that the period between November 9, 2020 and March 24, 2021 should be excluded in computing time. Although the application was brought about 15 days after proceedings were ready, the court took judicial notice that from mid-March 2020 to 2021 the Covid-19 pandemic interfered with normal operations including court operations, and found the explanation plausible, satisfactory and excusable.

p. 4

Legal principles established

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  • The Court has an unfettered discretion under Rule 4 of the Court of Appeal Rules to extend time for the doing of any act under the Court Rules, and any delay must be satisfactorily explained with valid and clear reasons upon which discretion can be favourably exercised.
  • Where a notice of appeal has been lodged and served together with a letter bespeaking proceedings, the period certified by the Registrar of the Superior Court in a certificate of delay ought to be excluded in computing the time within which the appeal is to be instituted.

Court orders

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  1. 1.Extension of time granted to the applicant to file and serve the record of appeal within thirty (30) days from the date of the ruling
  2. 2.Costs to abide by the outcome of the intended appeal

Authorities

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Legislation

  • Law of Succession Actsection 50(1)
  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 82
  • Court of Appeal Rules, 2010Rule 85
  • Probate and Administration RulesRule 39

Cases cited (2)

  • Rhoda Wairimu Karanja & another v Mary Wangui Karanja & another
    [2014] eKLR
  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR
On appeal from
High Court of Kenya at Kitale
Succession No. 167 of 2011
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010 (extension of time discretion)

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, "Anguko v Lit & another (Criminal Application E088 of 2021) [2025] KECA 1042 (KLR)", Case Analysis (2025). Court of Appeal Application dated May 25, 2021 (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1042/eng@2025-06-12

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