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Court of AppealAllowedNot stated in the judgment

Gitau & another v LNM & another (Civil Appeal (Application) E049 of 2023) [2025] KECA 1243 (KLR)

Court of Appeal of Kenya
23 June 2025
1,709 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal excused a lawyer's 14-day filing mistake, ruling that an honest error should not block an appeal from being heard.

What this practically means

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Executive summary

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This is a single-judge decision of the Court of Appeal at Nyeri, delivered by Ali-Aroni, JA, on 23rd June 2025, on an application by notice of motion dated 23rd March 2023 under Rule 4 of the Court of Appeal Rules. The applicants sought an order that the record of appeal filed and served on 23rd March 2023 be deemed as having been filed and served within the extended period. The notice of appeal had been lodged timeously in October 2022 and served on 1st November 2022. The delay of 14 days arose because counsel mistakenly computed the 60-day period for filing the record from the date of issuance of the certificate of delay (22nd February 2022) rather than from the date the proceedings were certified ready (16th December 2022), the period expiring on 9th March 2023. The respondents, though served, filed no replying affidavit or submissions. Applying the settled Rule 4 principles, including the requirement in Abdul Aziz Ngoma vs. Mungai Mathayo that sufficient reason be established before other considerations arise, the court found the inadvertent computation error a plausible and excusable reason, noting that longer delays of 29 and 35 days had been excused in prior authorities, and that no prejudice was demonstrated. Relying on Belinda Murai vs. Amos Wainaina, the court held that counsel's mistake should not close the door of justice. The court found the appeal to have arguable points on its face, allowed the application, and ordered that costs abide the outcome of the appeal. This is an interlocutory ruling, not a review of a decision below; the substantive appeal remains pending.

Questions the Court framed

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

  1. 1.Whether the 14-day delay in filing the record of appeal should be excused and the record of appeal deemed filed and served within the extended period under Rule 4

Key legal issues

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01

Whether counsel's inadvertent miscalculation of time constitutes sufficient reason for extension under Rule 4

Holding

Yes; a 14-day delay arising from counsel's inadvertent mistake in computing the 60-day period from the certificate of delay rather than the date the proceedings were ready is a plausible and excusable reason.

Reasoning

The court noted that in comparable authorities delays of 29 and 35 days occasioned by counsel's mistake were excused. The delay here was only 14 days and arose from an inadvertent computation error, not a deliberate act. The applicants filed the application timeously, one day after filing the record, and the appeal on its face appears arguable.

p. 3
02

Whether the absence of any demonstrated prejudice by the respondents weighs in favour of extension

Holding

Yes; the respondents, though served, filed no replying affidavit or submissions and did not demonstrate any prejudice.

Reasoning

The court observed that the respondents were served with a hearing notice but neither filed a replying affidavit nor submissions. Accordingly no likely prejudice was shown. The court also noted that on the face of it the appeal appears to have arguable points.

p. 4

Legal principles established

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  • The court's discretion under Rule 4 to extend time only arises once sufficient reason for extension has been established; absence of prejudice and prospects of success are considered only thereafter.
  • A short delay of 14 days caused by counsel's inadvertent miscalculation of time is excusable and does not cause prejudice warranting refusal of extension.

Court orders

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  1. 1.The application is allowed and the record of appeal filed on 23rd March 2023 is deemed as having been filed and served within the extended period
  2. 2.Costs will abide by the outcome of the appeal

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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, I allow the application. Costs will abide by the outcome of the appeal.
p. 4Final orders granting the Rule 4 application
A mistake is a mistake. It is no less a mistake because it is an unfortunate slip.
p. 3Counsel's mistake should not defeat the right of appeal
The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better.
p. 3Access to justice notwithstanding counsel's blunder
this court’s discretion to extend time under rule 4 only comes into existence after “suficient reason” for extending time has been established
p. 3Preconditions to exercise of Rule 4 discretion

Issues in the judgment

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minor

The judgment states the certificate of delay was issued on '22nd February, 2022', which is inconsistent with the chronology in which the certified copies of judgment and proceedings were only ready on 16th December 2022.

minor

The submitted record contains no coram listing or full case title/case number; the judgment is signed only by ALI-ARONI, JUDGE OF APPEAL, so the composition of the panel and the parties' names cannot be verified from this document.

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, "Gitau & another v LNM & another (Civil Appeal (Application) E049 of 2023) [2025] KECA 1243 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1243/eng@2025-06-23

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