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Court of AppealDismissedNot stated in judgment

Lumezani & 4 others v Lwugi (Civil Application E007 of 2025) [2025] KECA 1061 (KLR)

Court of Appeal of Kenya
12 June 2025
929 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend an 8-month appeal deadline because the applicants explained the delay with vague claims and no supporting evidence.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Eldoret (M. Warsame, JA) dismissing an application dated 19th July 2024 in which the applicants sought leave to file a notice of appeal and appeal against the judgment of the Environment and Land Court at Kitale (E&L No. 157 of 2017) delivered on 21st November 2023, leave for the firm of M/s Seneti and Oburu Associates Advocates to come on record, and stay of the impugned judgment. The judge first cautioned that applications to the Court of Appeal must be brought under the correct rules - extension of time being governed by Rule 4 of the Court of Appeal Rules, 2022 - not the Civil Procedure Act and Rules cited by the applicants. Under Rule 4, the single judge exercises a wide but judicious discretion, considering the length of and reasons for the delay, the arguability of the intended appeal, and prejudice to the respondent. The delay was approximately eight months. The three reasons advanced - the 1st applicant's medical challenges and old age, failure to communicate the judgment to the 2nd to 4th applicants, and late instruction of counsel - were each found deficient and unsubstantiated: no medical evidence was produced, the communication failure was vague, and parties have a personal duty to monitor their own cases. The claimed high chances of success were unsupported by any identified grounds of appeal. Finding the delay inordinate and unexplained, the judge dismissed the application with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the applicants should be granted leave to file a notice of appeal and appeal out of time
  2. 2.Whether the firm of M/s Seneti and Oburu Associates Advocates should be granted leave to come on record
  3. 3.Whether stay of the impugned judgment should be granted
  4. 4.Whether the delay of approximately 8 months is inordinate and sufficiently explained

Key legal issues

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01

Whether the delay of approximately 8 months in seeking leave to appeal was excusable

Holding

The delay was inordinate, unexplained and unsubstantiated; the application was dismissed.

Reasoning

The judgment was delivered on 21 November 2023 and the notice of appeal period expired on 5 December 2023, yet the application was filed on 19 July 2024. The reasons advanced - the 1st applicant's medical challenges and old age, failure to communicate the judgment to the 2nd to 4th applicants, and late instruction of counsel - were each found deficient, vague and unsupported by any medical reports, certificates or other credible evidence.

p. 3
02

Whether the intended appeal was arguable

Holding

Mere assertions of high chances of success without identifying specific grounds of appeal do not meet the test.

Reasoning

The applicants made sweeping, unsubstantiated claims about prospects of success without identifying any specific grounds of appeal or arguable points in the trial judgment. The test requires demonstration of arguable points of law or fact meriting appellate consideration; assertions without supporting particulars are insufficient.

p. 3
03

Whether the application was brought under the correct procedural framework

Holding

It was not; extension-of-time applications are governed by Rule 4 of the Court of Appeal Rules, 2022, but the court nonetheless considered the application on its merits.

Reasoning

The application cited provisions of the Civil Procedure Act and Civil Procedure Rules, which are primarily applicable to High Court proceedings. The judge noted the correct rule but proceeded to determine the application under Rule 4, exercising the wide but judicious discretion it confers.

p. 2

Legal principles established

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  • Applications to the Court of Appeal for extension of time must be brought under the correct rules of that Court, namely Rule 4 of the Court of Appeal Rules, 2022, not the Civil Procedure Act or Rules.
  • In a Rule 4 application the single judge exercises a wide but judicious discretion, considering the length of and reasons for delay, arguability of the intended appeal, and prejudice to the respondent.
  • Parties to litigation have a personal duty to monitor the progress of their cases and cannot delegate that responsibility entirely to others.
  • An applicant seeking extension of time must account for every day of delay with cogent reasons supported by credible evidence.

Court orders

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  1. 1.The application dated 19th July 2024 is dismissed
  2. 2.Costs of the application to the 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, Environment and Land Court, Kitale
E&L No. 157 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (extension of time)

Relief refused

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Leave to file notice of appeal and appeal out of time

Delay of approximately 8 months was inordinate and unexplained; reasons unsubstantiated

p. 3

Leave for M/s Seneti and Oburu Associates Advocates to come on record

Fell with the dismissed application; late instruction of counsel after expiry of the appeal period showed lack of due diligence

p. 2

Stay of the impugned judgment

Fell with the dismissed application; no merit found

p. 3

Costs

Dismissed with costs to the 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.

In the end therefore, I find the delay inordinate and unexplained. The reasons advanced are neither compelling nor supported by credible evidence
p. 3inordinate and unexplained delay
parties to litigation have a personal duty to monitor the progress of their cases and cannot delegate this responsibility entirely to others
p. 2parties' personal duty to follow up their cases
the late instruction of counsel in July 2024, some 8 months after the statutory appeal period had expired, demonstrates a lack of due diligence that cannot constitute good cause
p. 2late instruction of counsel not good cause
This Court has consistently held that an applicant seeking extension of time must account for every day of delay and provide cogent reasons supported by credible evidence
p. 3duty to account for every day of delay
Accordingly, I find no merit in this application and it is hereby dismissed with costs to the respondent.
p. 3disposition

Issues in the judgment

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minor

The judgment does not name the parties in the caption; the applicant and respondent are referred to only by role, limiting identification of the case.

minor

Leo Sila Mutiso v Rose Hellen Wangari Mwangi is cited with the year [1977], though the commonly reported decision is of 1997 - possible typographical error in the judgment.

minor

Minor typographical errors in the original text ("insuficient" for "insufficient").

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, "Lumezani & 4 others v Lwugi (Civil Application E007 of 2025) [2025] KECA 1061 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1061/eng@2025-06-12

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