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Court of AppealAllowedNot stated in the excerpt (application dated 7th October 2024, arising from Succession Cause No. E543 of 2022)

Shikunzi v Zarembka & another (Civil Application E509 of 2024) [2025] KECA 1315 (KLR)

Court of Appeal of Kenya
18 July 2025
1,124 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed a 47-day late appeal in a succession case, showing courts prioritise the right to appeal over technical objections.

What this practically means

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Executive summary

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This was a single-judge application in the Court of Appeal at Nairobi, decided by D. K. Musinga (President), seeking leave to file a notice of appeal out of time against a ruling of Riechi, J. in Succession Cause No. E543 of 2022 delivered on 7th August 2024. The applicant, through an affidavit sworn by his advocate, said he learned of the ruling only on 28th September 2024 via the Kenya Law Reports, having received no notice of delivery. The respondents opposed, arguing that the ruling date was posted on the judiciary e-filing portal, that the delay was inordinate, that the supporting affidavit was improperly sworn by counsel, that the application referenced a non-existent judgment and misnamed the parties, and that the intended appeal was unarguable. The court disregarded the technical objections as immaterial to the interest of justice. Applying the settled factors restated in Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, it found the 47-day delay not inordinate and adequately explained, notwithstanding the e-filing portal notice. The intended appeal was held arguable and not frivolous, and the court emphasized that a party's constitutional right of appeal should not be denied except for good reasons. The application was allowed: leave was granted, the appeal was to be filed and served within 14 days, and the costs of the application were made costs in the appeal.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted leave to file a notice of appeal out of time from the ruling delivered on 7th August 2024
  2. 2.Whether the delay of 47 days was inordinate and sufficiently explained
  3. 3.Whether the intended appeal is arguable and whether the respondents would suffer prejudice if leave is granted

Key legal issues

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01

Extension of time to file a notice of appeal

Holding

The application was meritorious; the 47-day delay was not inordinate and was adequately explained.

Reasoning

The judge applied the settled Wambua factors: length of delay, reasons for delay, arguability of the appeal, and prejudice. The delay was held not inordinate; the e-filing portal notice was noted but the delay was excused; the intended appeal was found arguable and prejudice to respondents insufficient to deny the constitutional right of appeal.

p. 3
02

Effect of notices published on the e-filing portal on a party's duty of diligence

Holding

Counsel is expected to monitor the e-filing portal, but failure to do so did not render the delay unexcused, partly because the timing of portal updates was uncertain.

Reasoning

The court agreed with the respondent that the ruling date was posted on the e-filing portal and diligent counsel should have seen it, but noted the delay also depends on when the portal was updated, and excused the delay as it was not inordinate.

p. 3
03

Technical objections to the application (advocate swearing affidavit, ruling vs judgment, party names)

Holding

Such technical objections were disregarded in the interest of justice.

Reasoning

The court held that nothing turned on the objections that the supporting affidavit was sworn by the applicant's advocate, that the application referenced a judgment instead of a ruling, or that parties were wrongly named; the application should be determined on its merits.

p. 2

Legal principles established

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  • In an extension-of-time application the Court considers the length of the delay, the reasons for the delay, the arguability of the intended appeal, prejudice to the respondent, and any other relevant factor.
  • A party who reasonably wishes to exercise the constitutional right of appeal should not be denied that right except for good reasons.

Court orders

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  1. 1.Leave granted to the applicant to file a notice of appeal out of time
  2. 2.The appeal to be filed and served within 14 days from the date of the order
  3. 3.Costs of the application shall be in the appeal

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya
Succession Cause No. E543 of 2022
Jurisdiction invoked
Inherent discretion under the Rules of the Court of Appeal to extend time for filing a notice of appeal

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 an application of this nature the judge exercises unfettered discretion, but in the exercise of that discretion the Court has to consider the length of the delay, the reasons for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, and any other relevant factor.
p. 2Test for extension of time
The period of delay in filing the application is about 47 days, which in my view, is not inordinate.
p. 2Length of delay
a party who reasonably wishes to exercise his/her constitutional right of appeal should not be denied that right except for good reasons.
p. 3Right of appeal
I grant leave as sought and direct that the appeal be filed and served within 14 days from the date hereof. The costs of the application shall be in the appeal.
p. 3Final orders

Issues in the judgment

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minor

The judgment text contains no case title, appeal number, or neutral citation in the excerpt; only the underlying succession cause number is given.

minor

The 1st respondent deponed that the delay was 62 days, while the court computed the delay as 47 days.

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, "Shikunzi v Zarembka & another (Civil Application E509 of 2024) [2025] KECA 1315 (KLR)", Case Analysis (2025). Not stated in the excerpt (application dated 7th October 2024, arising from Succession Cause No. E543 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1315/eng@2025-07-18

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