Mutugi & another (Suing as the legal representatives of Samuel Mugera Mutugi - Deceased) v Oewa & another (Civil Application E073 of 2021) [2025] KECA 1329 (KLR)
The bottom line
#The Court of Appeal refused to excuse a 22-month delay in filing an appeal notice, ruling that blaming Covid-19 without evidence cannot justify missed court deadlines.
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 applicants have met the threshold for extension of time to file and serve a notice of appeal out of time
- 2.Whether the delay in filing and serving the application was inordinate and satisfactorily explained
Key legal issues
#Whether the applicants' delay in filing the notice of appeal and the application was excusable
The delay was inordinate and not excused; financial hardship was unsubstantiated and even cost-free steps were not taken
Judgment was delivered on 6th December 2019; the application was filed 22 months later and served 59 months after judgment and 37 months after filing. The applicants blamed Covid-19-related economic hardship but produced no evidence of impecunity or mitigation, and did not even write the free letter requesting typed proceedings timeously. The court concluded the applicants were guilty of laches at every step and that leniency under article 159(2)(b) was unwarranted.
The principles governing extension of time under rule 4
The court applied the Wasike v Swala factors as restated in Chemaringo: merit, absence of prejudice, and inordinate delay
The court restated the settled test that an applicant must show merit in the appeal, absence of undue prejudice to the respondent, and that the delay has not been inordinate. The court found the threshold unmet because the delay was inordinate and unexplained, and declined to grant leniency even under the overriding objective.
Legal principles established
#- An applicant for extension of time must show, in descending order, merit in the appeal, no undue prejudice to the respondent, and that the delay has not been inordinate
- Inordinate and unexplained delay is a cardinal basis for refusing extension of time; indolent litigants cannot expect clemency
- Article 159(2)(d) of the Constitution is not a panacea for procedural shortfalls and applies on a case-to-case basis
Court orders
#- 1.The notice of motion dated 20th August 2021 is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Mombasa High Court Civil Appeal No. 70 of 2015
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9 and rule 4 of the Court of Appeal Rules, 2010
Relief refused
#Extension of time to file and serve the notice of appeal out of time
The delay was inordinate and unexplained; the applicants' claim of financial hardship was unsubstantiated and they were guilty of laches at every step
Costs of the application to abide the results of the intended appeal
The application was dismissed with costs to the respondents
Costs
Application dismissed with costs to the respondents
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.
the notice of motion dated 20th August 2021 is devoid of merit and is hereby dismissed with costs to the respondents.
I conclude that the delay is not only inordinate, but also not unexplained. These are two cardinal bases upon which the Court exercises its discretion in granting an application of this nature.
when a party is indolent in doing even the minutest of the task required of him/her, it cannot expect clemency from the court.
This is not one case where I can extend leniency to the applicants even under article 159(2)(b) of the Constitution.
an applicant must now show, in descending scale of importance, the following factors
Issues in the judgment
#The judgment states the impugned High Court judgment is dated 6th November 2019 but the respondents' affidavit and submissions refer to delivery on 6th December 2019
The replying affidavit of John Ochieng Orwa is described as sworn by 'the 1st applicant' whereas he is the 1st respondent
Salat is cited twice with inconsistent years (2014 eKLR by the applicants, [2013] eKLR by the court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutugi & another (Suing as the legal representatives of Samuel Mugera Mutugi - Deceased) v Oewa & another (Civil Application E073 of 2021) [2025] KECA 1329 (KLR)", Case Analysis (2025). Civil Application (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1329/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.