Shikunzi v Zarembka & another (Civil Application E509 of 2024) [2025] KECA 1315 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the delay of 47 days was inordinate and sufficiently explained
- 3.Whether the intended appeal is arguable and whether the respondents would suffer prejudice if leave is granted
Key legal issues
#Extension of time to file a notice of appeal
The application was meritorious; the 47-day delay was not inordinate and was adequately explained.
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.
Effect of notices published on the e-filing portal on a party's duty of diligence
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.
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.
Technical objections to the application (advocate swearing affidavit, ruling vs judgment, party names)
Such technical objections were disregarded in the interest of justice.
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.
Legal principles established
#- 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
#- 1.Leave granted to the applicant to file a notice of appeal out of time
- 2.The appeal to be filed and served within 14 days from the date of the order
- 3.Costs of the application shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
The period of delay in filing the application is about 47 days, which in my view, is not inordinate.
a party who reasonably wishes to exercise his/her constitutional right of appeal should not be denied that right except for good reasons.
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.
Issues in the judgment
#The judgment text contains no case title, appeal number, or neutral citation in the excerpt; only the underlying succession cause number is given.
The 1st respondent deponed that the delay was 62 days, while the court computed the delay as 47 days.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.