Mailu (suing as the legal representative of the Estate of Mailu Mulinge - Deceased) v Deputy County Commissioner, Mukaa Sub-County & 3 others (Civil Application E133 of 2023) [2025] KECA 1193 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a self-represented litigant to appeal out of time, accepting illness, delayed court proceedings and communication breakdown as valid reasons for the delay.
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 applicant should be granted leave to file a notice of appeal and memorandum/record of appeal out of time under Rule 4 of the Court of Appeal Rules 2010
- 2.Whether the length of the delay was inordinate
- 3.Whether the reasons advanced for the delay were plausible and sufficient
- 4.Whether the respondents would suffer prejudice if the extension was granted
Key legal issues
#Length of delay
A delay of about 12 days in filing the notice of appeal was not inordinate.
The impugned ruling was delivered on 19th October 2022 and the notice of appeal was filed on 14th November 2022. The court assessed this interval in the circumstances of the case and found it short enough not to be inordinate, being one factor in the overall Rule 4 discretion.
Reasons for the delay
Delay in supply of certified proceedings, ill health and breakdown in communication with previous counsel constituted reasonable and plausible reasons sufficiently explaining the delay.
The applicant attributed the delay to the court's delay in supplying certified proceedings, his serious illness after receiving the proceedings on 14th December 2022, and a breakdown in communication with his former advocate. The court accepted these explanations as reasonable and sufficient, satisfying it that the delay was explained.
Arguability of the intended appeal
A single Judge should not determine the arguability of the intended appeal at the extension-of-time stage.
The court declined to comment on whether the intended appeal was arguable, holding that such a determination was outside the province of a single Judge exercising Rule 4 discretion, and proceeded on the remaining factors.
Prejudice to the respondents
No prejudice would be suffered by the respondents if the extension was granted.
The 1st, 2nd and 3rd respondents did not respond to the motion despite service; only the interested party opposed. The court was satisfied that allowing the application would cause no prejudice, completing the Rule 4 analysis in the applicant's favour.
Legal principles established
#- In deciding an application to extend time under Rule 4, the court exercises a wide but judicious discretion guided by the length of the delay, the reason for the delay, the arguability of the intended appeal and the prejudice to the respondent.
Court orders
#- 1.The applicant's motion dated 3rd April 2023 is allowed as prayed
- 2.Leave granted to file the notice of appeal and memorandum of appeal (record of appeal) out of time
- 3.The applicant shall file the notice and memorandum of appeal within 30 days from the date of the ruling, failing which the orders shall stand vacated
- 4.Costs of the motion shall abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4 and 82 of the Court of Appeal Rules 2010 (inherent and discretionary jurisdiction of a single Judge of the Court of Appeal to extend time)
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.
The court has wide and unfettered discretion in deciding whether to extend time or not. However, in exercising its discretion, the court should do so judiciously.
first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.
Taking into totality all the circumstances of this case, I am of the considered view that the applicant has demonstrated and satisfied the existence of the principles for consideration in the exercise of my unfettered discretion pursuant to rule 4 of this court to extend time.
Accordingly, the applicant’s motion dated 3rd April 2023, is merited and the same is hereby allowed as prayed. The applicant shall file the notice and memorandum of appeal within a period of 30 days from the date of this ruling failure to which these orders shall stand vacated.
Issues in the judgment
#The judgment inconsistently describes the length of delay: the motion is dated 3rd April 2023 (filed 6th April 2023 per the parties), yet at paragraph 15 the court states 'The motion herein was filed on 14th November 2022', conflating the notice of appeal with the motion.
The judgment contains typographical errors ('profiered' for 'proffered', 'sufier' for 'suffer', 'suficiently' for 'sufficiently') and repeats 'the the'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mailu (suing as the legal representative of the Estate of Mailu Mulinge - Deceased) v Deputy County Commissioner, Mukaa Sub-County & 3 others (Civil Application E133 of 2023) [2025] KECA 1193 (KLR)", Case Analysis (2025). Motion on notice dated 3rd April 2023 (Court of Appeal, single Judge, Rule 4 application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1193/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.