Mwakuzimu & another v Germano Chincherini Foundation (The Registered Trustee) (Civil Application E055 of 2023) [2025] KECA 1335 (KLR)
The bottom line
#The Court of Appeal struck out a late-appeal application because the applicants never filed a notice of appeal, which is a mandatory first step.
What this practically means
#Executive summary
#Key legal issues
#Requirement of a notice of appeal before invoking rule 4 discretion
The Motion was incompetent because no notice of appeal was lodged with the Registrar under rule 7(1); without it the Court's jurisdiction to extend time is not engaged
The court reasoned that a notice of appeal signifies the intention to appeal and is a jurisdictional pre-requisite, following the Supreme Court in University of Eldoret v Sitienei and Apungu Arthur Kibira v IEBC. There being no proof that a notice of appeal was lodged, and no evidence of a written request for proceedings within rule 84(2) timelines, nothing flows from a non-existent notice. The court acknowledged the constitutional guarantee of access to justice under Article 48 but held only exceptional circumstances would warrant exercise of discretion in such a case.
Factors for extension of time under rule 4
The four basic factors are the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent; the discretion is unfettered and not limited to listed factors
The court restated the Leo Sila Mutiso factors and noted the applicants had an arguable appeal with 11 draft grounds, but since the threshold jurisdictional requirement of a notice of appeal was absent, it declined to pronounce on the other factors. It also cited Andrew Kiplagat Chemaringo on the need for a plausible and satisfactory explanation for delay, which the applicants failed to provide beyond alleging non-notification of the judgment date, contradicted by the respondent's evidence of an email notice of 28th April 2023.
Legal principles established
#- The filing of a notice of appeal is an unconditional jurisdictional pre-requisite; without it the Court of Appeal cannot exercise its rule 4 discretion to extend time
- Extension of time under rule 4 is discretionary and guided by the length of and reason for delay, chances of success, and prejudice to the respondent, but the discretion is engaged only where a notice of appeal is on record
Court orders
#- 1.The applicants' Notice of Motion dated 22nd June 2023 is struck out with costs to the respondent
- On appeal from
- Environment and Land Court, Mombasa
- Mombasa ELCC No. 59 of 2016
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time discretion); the court held its jurisdiction was not engaged absent a notice of appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwakuzimu & another v Germano Chincherini Foundation (The Registered Trustee) (Civil Application E055 of 2023) [2025] KECA 1335 (KLR)", Case Analysis (2025). Notice of Motion dated 22nd June 2023 (Civil Application, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1335/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.