Joseph Kihura Gachuki v Daniel Kiunyu
The bottom line
#The Court of Appeal refused to forgive a three-month delay in filing an appeal because the applicant could not explain what he did during that period.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant's delay of approximately three months in moving for extension of time was sufficiently explained
The application was dismissed because the applicant failed to explain what he did between 14th August 2024, when the portal indicated the judgment would be delivered, and 7th October 2024, when the application was filed.
The Court accepted that the applicant may not have known the judgment was delivered early on 8th July 2024 after the portal showed 14th August 2024. However, the applicant did not say whether he attended court or checked the record on 14th August 2024, nor what he did thereafter. Citing Edith Gichugu Koine and Nicholas Kiptoo Korir Arap Salat, the Court held that a party seeking extension of time bears the burden of laying a basis to the Court's satisfaction, and without explanation the discretion cannot be exercised in his favour. The Court therefore found it unnecessary to assess arguability or prejudice.
Factors governing the discretion to grant extension of time
The discretion is guided by the length of the delay, reasons for it, chances of the appeal succeeding, prejudice to the respondent, and whether issues of public importance are raised.
The Court restated the established criteria, citing Edith Gichugu Koine vs Stephen Njagi Thoithi [2014] eKLR, and applied them to the facts, finding the absence of explanation for the delay dispositive without reaching the remaining factors.
Legal principles established
#- Every delay in filing an appeal must be sufficiently explained; extension of time is an equitable remedy available only to a deserving party who lays a basis for the discretion to be exercised.
- Where no reasonable explanation for delay exists, the Court need not consider the arguability of the intended appeal or prejudice to the respondent.
Court orders
#- 1.The application for extension of time to file a notice of appeal is dismissed with costs to the respondent
- 2.The prayer for stay of execution is not considered as it cannot be entertained in a single judge application
- On appeal from
- High Court of Kenya at Kiambu
- Kiambu ACCA No. E007 of 2022
- Jurisdiction invoked
- Inherent discretion of a single Judge of the Court of Appeal under the Court of Appeal Rules to grant extension of time to file a notice of appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kihura Gachuki v Daniel Kiunyu", Case Analysis (2025). Application for extension of time arising from Kiambu ACCA No. E007 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1316/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.