Gitau & another v LNM & another (Civil Appeal (Application) E049 of 2023) [2025] KECA 1243 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether counsel's inadvertent miscalculation of time constitutes sufficient reason for extension under Rule 4
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.
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.
Whether the absence of any demonstrated prejudice by the respondents weighs in favour of extension
Yes; the respondents, though served, filed no replying affidavit or submissions and did not demonstrate any prejudice.
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.
Legal principles established
#- 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
#- 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.Costs will abide by the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
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.
In the end, I allow the application. Costs will abide by the outcome of the appeal.
A mistake is a mistake. It is no less a mistake because it is an unfortunate slip.
The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better.
this court’s discretion to extend time under rule 4 only comes into existence after “suficient reason” for extending time has been established
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.