Hussein (Suing as the administrator of the Estate of Amina Sora Gube) & 2 others v Hirbo (Civil Application E072 of 2025) [2025] KECA 1413 (KLR)
The bottom line
#Kenya's Court of Appeal gave a family two extra months' grace to file their appeal, saying a two-month delay explained by missing court documents was acceptable.
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 should be granted leave to file the appeal out of time (extension of time to file notice and record of appeal)
- 2.Whether the delay of about two months since judgment was inordinate and whether sufficient reason exists to excuse it
- 3.Whether the respondent would suffer prejudice if the extension is granted
Key legal issues
#Whether the two-month delay in filing the appeal should be excused
The delay was not inordinate; a letter bespeaking proceedings was written about five weeks after judgment, and the delay was attributed to non-receipt of typed proceedings.
The court measured the delay between the judgment of 6th March 2025 and the application dated 6th May 2025, approximately two months. It found the applicants had promptly sought proceedings (letter of 11th April 2025) and that the delay was explained. The court noted the absence of a notice of appeal but excused that lapse given the finding of no inordinate delay and the absence of prejudice to the respondent.
Whether the respondent would be prejudiced by the extension
The respondent would suffer no prejudice that could not be compensated by costs, supporting the exercise of discretion in the applicants' favour.
Prejudice to the respondent is a standard factor in the rule 4 jurisdiction. The court found nothing to suggest the respondent would be prejudiced if the discretion were exercised in favour of the applicants, which weighed in favour of granting the extension of time and leave to file the notice and record of appeal out of time.
Legal principles established
#- In exercising its unfettered discretion under rule 4 to extend time, the court considers relevant but not exhaustive factors including the period of delay, the reason for the delay, the chances of the appeal succeeding, the degree of prejudice to the respondent, the effect of the delay on public administration, the importance of compliance with time limits, the resources of the parties, and whether the matter raises issues of public importance.
Court orders
#- 1.Leave granted to the applicants to file the appeal out of time against the judgment of the High Court delivered on 6th March, 2025 in HCCCA/E006/2022 as consolidated with HCCCMisc/E004/2022
- 2.Notice of appeal to be lodged within seven (7) days of 31st July, 2025
- 3.Record of appeal to be filed fourteen (14) days thereafter
- 4.Costs of the motion to 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 at Marsabit
- Marsabit Civil Appeal No. E06 of 2022 as consolidated with HCCCMisc/E004/2022 (also referenced as HCCCA/E006/2022)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time; single Judge jurisdiction over prayers 4 and 5 of the motion)
Relief refused
#Other prayers in the motion beyond prayers 4 and 5
As a single Judge, the Court could only entertain prayers 4 and 5; the remaining prayers were outside single-Judge jurisdiction and were not determined
Costs
Costs of the motion will be in the 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.
I allow the motion for leave to extend time. Let notice of appeal be lodged within seven (7) days of today and record of appeal be filed fourteen (14) days thereafter. Costs of the motion will be in the appeal.
As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant.
I do not think there is inordinate delay.
I cannot see how the respondent would be prejudiced if I exercise discretion in favour of the applicants.
Issues in the judgment
#The prayer quoted in the judgment refers to an appeal against the decision of Justice Jesse Njagi in Marsabit Civil Appeal No. E06 of 2022, but the leave sought is against a judgment delivered in HCCCA/E006/2022; the case numbers are inconsistently rendered in the judgment.
The letter bespeaking proceedings is inconsistently dated within the judgment - once as 11th April, 2020 and once as 11th April, 2025.
The respondent is not named anywhere in the judgment as reproduced, and the case title is not stated.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hussein (Suing as the administrator of the Estate of Amina Sora Gube) & 2 others v Hirbo (Civil Application E072 of 2025) [2025] KECA 1413 (KLR)", Case Analysis (2025). Not stated in the judgment (Civil Application under Rule 4). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1413/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.