Morris Kyengo Makovu (suing On Behalf of The Estate of David Makovu Ndambo - Deceased) v Kenya Power & Lighting Company Ltd & 2 others
The bottom line
#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
#Executive summary
#Key legal issues
#Extension of time under Rule 4 of the Court of Appeal Rules
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.
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.
Counsel's mistake as a ground for extension of time
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.
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.
Legal principles established
#- 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
#- 1.The application dated 20th June, 2024 is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.