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Court of AppealDismissedNot stated in judgment (application dated 20th June, 2024)· [2025] KECA 1314 (KLR)

Morris Kyengo Makovu (suing On Behalf of The Estate of David Makovu Ndambo - Deceased) v Kenya Power & Lighting Company Ltd & 2 others

Court of Appeal of Kenya
18 July 2025
832 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse a two-and-a-half-year delay in filing an appeal, ruling that blaming your lawyer does not excuse a litigant's own inaction.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi delivered by F. Tuiyott, JA on 18th July 2025, determining an application dated 20th June 2024 under Rule 4 of the Court of Appeal Rules. The applicant sought extension of time to file a record of appeal, and deeming of a memorandum of appeal as properly on record, against the judgment of A. Nyukuri, J. delivered on 9th December 2021 in Machakos ELC Petition Case No. 16A of 2019 dismissing his petition. The applicant failed to file a notice of appeal within the fourteen days prescribed by Rule 77(2), blaming his former advocates, J.W Wachira Advocates, for failing to act on his instructions. The 1st respondent opposed, describing the application as an afterthought brought after a delay of more than two and a half years, and disputing that instructions to appeal were ever given. The court applied the settled Fakir Mohamed v Joseph Mugambi principles - length and reason for delay, prospects of appeal, prejudice, and related factors - and the Itute Ingu guidance that a bona fide counsel mistake may attract the court's discretion only after examination of the nature and quality of the mistake and the applicant's conduct. Holding that a period of two and a half years to discover that no appeal was filed was a long time and did not depict the applicant as diligent, the court found the delay could not be pardoned and dismissed the application with costs to the 1st respondent.

Key legal issues

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01

Extension of time under Rule 4 of the Court of Appeal Rules

Holding

The discretion under Rule 4 is exercised on the settled principles in Fakir Mohamed v Joseph Mugambi; on the facts the two-and-a-half-year delay was inordinate and unexplained, so extension was refused.

Reasoning

The court applied the Fakir Mohamed factors: length of delay, reason for delay, chances of appeal succeeding, and prejudice. The judgment appealed from was delivered on 9th December 2021; no notice of appeal was filed within the fourteen days prescribed by Rule 77(2). The applicant blamed his former advocates, but the court held that both counsel and the applicant bore responsibility, since the applicant took a very long time to discover the omission. The delay was therefore not pardoned and the application was dismissed with costs.

p. 2
02

Counsel's mistake as a ground for extension of time

Holding

A bona fide mistake by counsel can entitle an applicant to the court's discretion, but only after the court examines the nature and quality of the mistake and the applicant's own conduct.

Reasoning

Relying on Itute Ingu & another v Isumael Mwakavi Mwendwa, the court acknowledged that the Rule 4 discretion is wholly unfettered and that a bona fide mistake by counsel may justify extension. However, the court must examine the quality of the mistake and the conduct of the applicant. Here the applicant took over two and a half years to discover that no appeal had been filed, which did not depict him as diligent and attentive, so the discretion was not exercised in his favour.

p. 2

Legal principles established

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  • Where blame for failure to appeal is placed on counsel, the court must interrogate the nature and quality of the mistake and the conduct of the applicant before exercising its Rule 4 discretion.
  • An inordinate delay attributable in part to the applicant himself cannot be pardoned even where counsel error is alleged.

Court orders

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  1. 1.The application dated 20th June, 2024 is dismissed
  2. 2.Costs of the application awarded to the 1st respondent
On appeal from
High Court of Kenya (ELC) at Machakos
Machakos ELC Petition Case No. 16A of 2019
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time discretion)

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, "Morris Kyengo Makovu (suing On Behalf of The Estate of David Makovu Ndambo - Deceased) v Kenya Power & Lighting Company Ltd & 2 others", Case Analysis (2025). Not stated in judgment (application dated 20th June, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1314/eng@2025-07-18

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