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Court of AppealDismissedCivil Application (Mombasa)

Mutugi & another (Suing as the legal representatives of Samuel Mugera Mutugi - Deceased) v Oewa & another (Civil Application E073 of 2021) [2025] KECA 1329 (KLR)

Court of Appeal of Kenya
18 July 2025
2,038 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a single-judge application under rule 4 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act seeking extension of time to file a notice of appeal out of time. The applicants, legal representatives of a deceased man awarded Kshs 1,590,020 in a fatal road accident claim, sought to challenge the High Court's decision (PJO Otieno, J) which had set aside the trial court's finding on liability for lack of proof of negligence. The applicants blamed their delay on economic hardship occasioned by the Covid-19 pandemic. The respondents countered that judgment was delivered on 6th December 2019, the application was filed 22 months later and served 59 months after judgment, and that filing a notice of appeal costs only Kshs 450. Ngenye-Macharia, JA applied the Wasike v Swala test as restated in Chemaringo: merit in the appeal, absence of prejudice, and inordinate delay. The court found the applicants guilty of laches at every procedural step, held their claimed impecunity unsubstantiated, noted they had not even taken cost-free steps such as timeously requesting typed proceedings, and declined leniency even under article 159(2)(b) of the Constitution, citing Salat and Raila Odinga on the limits of the overriding objective. The application was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the applicants have met the threshold for extension of time to file and serve a notice of appeal out of time
  2. 2.Whether the delay in filing and serving the application was inordinate and satisfactorily explained

Key legal issues

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01

Whether the applicants' delay in filing the notice of appeal and the application was excusable

Holding

The delay was inordinate and not excused; financial hardship was unsubstantiated and even cost-free steps were not taken

Reasoning

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.

p. 4
02

The principles governing extension of time under rule 4

Holding

The court applied the Wasike v Swala factors as restated in Chemaringo: merit, absence of prejudice, and inordinate delay

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The notice of motion dated 20th August 2021 is dismissed with costs to the respondents

The bench

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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

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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

p. 3

Costs of the application to abide the results of the intended appeal

The application was dismissed with costs to the respondents

p. 4

Costs

Application dismissed with costs to the respondents

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.

the notice of motion dated 20th August 2021 is devoid of merit and is hereby dismissed with costs to the respondents.
p. 4Final orders - dismissal of extension of time application
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.
p. 3Inordinate and unexplained delay
when a party is indolent in doing even the minutest of the task required of him/her, it cannot expect clemency from the court.
p. 4Indolence and dilatory conduct
This is not one case where I can extend leniency to the applicants even under article 159(2)(b) of the Constitution.
p. 4Limits of article 159 overriding objective
an applicant must now show, in descending scale of importance, the following factors
p. 3Rule 4 extension of time principles

Issues in the judgment

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minor

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

minor

The replying affidavit of John Ochieng Orwa is described as sworn by 'the 1st applicant' whereas he is the 1st respondent

minor

Salat is cited twice with inconsistent years (2014 eKLR by the applicants, [2013] eKLR by the court)

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, "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.