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Court of AppealAllowedReference from the ruling of Laibuta, JA dated 9th July 2021 (extension of time application under rule 4 of the Court of Appeal Rules)· [2025] KECA 1196 (KLR)

Anne Gichimo v Kenya Ordinance Factories Corporation

Court of Appeal
4 July 2025
3,912 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed a litigant's appeal over a two-year filing delay, ruling that a lawyer's honest mistake and Covid-19 disruptions excused the late appeal record.

What this practically means

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Executive summary

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This is a reference to the full Court of Appeal under rule 55 (now rule 57) of the Court's Rules from the decision of Laibuta, JA, sitting as a single judge, dismissing Anne Gichimo's application for extension of time to file and serve a record of appeal. The intended appeal was from a ruling of Wasilwa, J in Nairobi ELRC Case No. 1353 of 2014. The single judge had found the delay of 729 days inordinate and unexplained, the absence of a certificate of delay fatal, and the draft grounds of appeal unarguable, and dismissed the application with costs. Before the full bench, the applicant argued that the delay arose from a clerk's inadvertent misfiling of the collected proceedings, a failed Covid-19 email filing discovered only in January 2021, and that the judge had failed to consider her affidavits and had wrongly delved into the merits of the appeal. The respondent maintained that the single judge had properly exercised his discretion and that indolence should not be excused. The full court, applying Mbogo v Shah and John Koyi Waluke, held that the single judge had failed properly to consider the explanation in the two affidavits; that the pandemic-related disruption, the misfiling and the honest mistaken belief constituted a sufficient and reasonable explanation; that the court should not visit an advocate's mistake on the litigant where remedial efforts were made; and that the intended appeal raised bona fide arguable issues, including res judicata, defamation, sexual harassment and the legality of the dismissal. The reference was allowed, the applicant was directed to file and serve the record of appeal within thirty days, and the costs of the reference were made to abide the outcome of the intended appeal. The single judge's dismissal of the extension-of-time application was thereby reversed.

Key legal issues

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01

Whether the full bench could interfere with the single judge's discretionary decision on a reference

Holding

The reference was merited because the single judge failed to properly consider the reasons for delay advanced in the applicant's and her advocate's affidavits, and thus improperly exercised his discretion under rule 4.

Reasoning

The full court restated the Mbogo v Shah and John Koyi Waluke principles limiting interference with a single judge's discretion to cases of misdirection, consideration of irrelevant matters, failure to consider relevant matters, or a plainly wrong decision. It found that had the learned judge properly considered the two affidavits, he would have found the delay adequately explained. The pandemic-related filing disruption and the inadvertent misfiling constituted a sufficient and reasonable explanation.

p. 7
02

Whether the delay of 729 days in filing the record of appeal was excusable

Holding

Yes - the delay was sufficiently explained by a clerk's inadvertent misfiling of the collected proceedings, the advocate's honest mistaken belief, and the Covid-19 filing disruptions, including the failed email filing discovered only in January 2021.

Reasoning

The court accepted that the advocate bore a duty to confirm receipt of the email but could not ignore the exceptional disruption caused by the pandemic to court operations throughout 2020. The explanation was set out in two affidavits; the judge's failure to properly weigh them amounted to failing to consider relevant material.

p. 6
03

Whether an advocate's mistake should be visited on the litigant

Holding

No - the court declined to punish the applicant for her advocate's mistake, noting the advocate made deliberate efforts to rectify the oversight once discovered, and that the respondent would suffer no prejudice if the appeal were heard on its merits.

Reasoning

Following Owino Ger, Belinda Murai and Philip Keipto Chemwolo, the court reiterated that mistakes of counsel should not bar access to justice where fault is attributable to the advocate and remedial steps were taken promptly. No prejudice to the respondent was demonstrated.

p. 6
04

Whether the intended appeal was arguable

Holding

Yes - issues of res judicata, the alleged failure to assess the defamation and sexual harassment claims, and the legality of the dismissal are not frivolous and merit interrogation on appeal.

Reasoning

The court disagreed with the single judge's conclusion that the draft grounds lacked arguability, applying the standard that an arguable appeal need only raise a single bona fide issue, and noting per Mwangi v Kenya Airways that chances of success are only a possible consideration in an extension-of-time application.

p. 6

Legal principles established

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  • A single judge exercising the discretion under rule 4 does so on behalf of the whole court, and the full bench may interfere only where the single judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the evidence or law, or the decision was plainly wrong; it is not enough that the full bench would have reached a different result.
  • An arguable appeal is not one necessarily bound to succeed but one that raises at least a single bona fide issue worthy of consideration; and consideration of the chances of the appeal succeeding is only a possible, not a mandatory, consideration in an extension-of-time application.
  • Where non-compliance with procedural requirements is attributable to an advocate's fault, and the advocate made deliberate efforts to rectify the oversight once discovered, the court may decline to visit the advocate's mistakes upon the client.

Court orders

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  1. 1.The reference is allowed
  2. 2.The applicant is directed to file and serve the record of appeal within thirty (30) days from the date of the judgment
  3. 3.The costs of the reference shall abide the outcome of the intended appeal
On appeal from
Court of Appeal (decision of a single judge, Laibuta, JA)
Jurisdiction invoked
Rule 55 (now rule 57) of the Court of Appeal Rules - reference to the full court from a decision of a single judge

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, "Anne Gichimo v Kenya Ordinance Factories Corporation", Case Analysis (2025). Reference from the ruling of Laibuta, JA dated 9th July 2021 (extension of time application under rule 4 of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1196/eng@2025-07-04

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