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Court of AppealPartially AllowedNot stated in the judgment

Busienei v Busienei & another (Civil Application E028 of 2024) [2025] KECA 1053 (KLR)

Court of Appeal of Kenya
12 June 2025
1,058 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal let a late appeal proceed because the judgment was never served, but refused to stop execution of the Kshs.16.3 million award meanwhile.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Eldoret on a Notice of Motion dated 14th May 2024 by Selly J. Busenei under Rules 4, 5, 41, 49, 51, 55, 56 and 58 of the Court of Appeal Rules. The applicant sought leave to file a notice of appeal out of time against a judgment of Chemitei, J. delivered on 19th September 2024, which had dismissed her claim for mesne profits and allowed the 2nd respondent's counterclaim of Kshs.16,300,000 arising from a dispute over the sale of land parcels LR No. 6459/4 and LR No. 6459/5, including a partial judgment of 9th April 2019. The applicant explained that the judgment was delivered without notice to the parties and that she learned of it only when served with a taxation notice on 15th April 2024. Applying the settled Rule 4 factors, including length of and reason for delay, chances of success and prejudice, the court found that the 2nd respondent had not refuted the assertion that the judgment notice was never served, that the draft memorandum raised pertinent issues, and that the one-month delay in moving the court was not inordinate. The application was allowed, with the appeal to be filed within 60 days, and costs awarded to the 2nd respondent. No express orders were made on stay of execution or priority hearing.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted leave to file a notice of appeal out of time
  2. 2.Whether the delay in filing the notice of appeal was inordinate and satisfactorily explained
  3. 3.Whether the grace period should operate as a stay of execution
  4. 4.Whether the proposed appeal should be heard on a priority basis

Key legal issues

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01

Whether the applicant explained the delay in filing the notice of appeal to the satisfaction of the court

Holding

Yes. The court found the judgment was delivered in the absence of both parties and that the 2nd respondent did not refute that the judgment notice was never served or communicated; the one-month delay in filing the application was not inordinate.

Reasoning

The court observed that the applicant discovered the judgment only upon being served with a notice of taxation on 15th April 2024. The 2nd respondent's assertion that the applicant failed to make enquiries did not overcome the unrefuted fact that no judgment notice was served. The draft memorandum of appeal raised pertinent issues warranting consideration, and the delay of about one month was found not inordinate, justifying extension under Rule 4.

p. 3

Legal principles established

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  • The discretion under Rule 4 of the Court of Appeal Rules is unfettered but must be exercised on relevant factors including the period of delay, the reason for the delay, the chances of the appeal succeeding and the degree of prejudice to the respondent

Court orders

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  1. 1.The application is allowed
  2. 2.The appeal to be filed within 60 days
  3. 3.Costs to the 2nd respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority

Wrote the judgment

On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Rule 4, 5, 41, 49, 51, 55, 56 and 58 of the Court of Appeal Rules

Relief refused

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Stay of execution during the grace period

The court, while allowing the extension, only ordered that the appeal be filed within 60 days and made no express order that the grace period operate as a stay of execution

p. 3

Priority hearing of the proposed appeal

The court did not make any express order on priority listing

p. 3

Costs

Costs to the 2nd respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The unfettered discretion of this court in an application under rule 4 can only fiow when an applicant explains to the satisfaction of the court that they are entitled to the exercise of discretion in their favour.
p. 2Discretion under Rule 4 - extension of time
I am therefore inclined to allow the application and order that the appeal be filed within 60 days. Costs to the 2nd respondent.
p. 3Final orders

Issues in the judgment

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minor

The paragraph numbering within the judgment is confused, with several paragraphs mislabelled (e.g. paragraphs numbered '2.' repeatedly), which may affect pinpointing of passages.

material

The applicant states she discovered the judgment upon a taxation notice dated 15th April 2024, but elsewhere the judgment is stated to have been delivered on 19th September 2024, an internal chronological inconsistency.

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, "Busienei v Busienei & another (Civil Application E028 of 2024) [2025] KECA 1053 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1053/eng@2025-06-12

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