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Court of AppealAllowedCivil Application (rule 4 Motion, Nyeri)

Githuci v Ngunu & another (Civil Application E071 of 2025) [2025] KECA 1414 (KLR)

Court of Appeal of Kenya
31 July 2025
735 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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The Court of Appeal in Nyeri let a man appeal late because his previous lawyer failed to file the appeal on time.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nyeri delivered on 31 July 2025 by S. Ole Kantai, JA, on a Motion under rule 4 of the Court of Appeal Rules. The applicant, David Muriithi Githuci, sought leave to file and serve a notice of appeal, and the record of appeal, out of time against the judgment of the High Court at Kerugoya (Mutungi, J.) delivered on 20 March 2025 in ELC Appeal Case No. E034 of 2022, in which his appeal was dismissed. He attributed the failure to file a timely notice of appeal to the inaction of his previous counsel and asserted that the intended appeal raised arguable issues, including the jurisdiction of the Environment and Land Court. The respondent opposed the application as frivolous, vexatious and brought with inordinate delay. Applying the settled principles in Fakir Mohamed v Joseph Mugambi & 2 Others - which enumerate the period and reason for delay, chances of success, prejudice to the respondent and other relevant but non-exhaustive factors - the court found the delay of less than two months not inordinate and accepted that a litigant should not be punished for his advocate's mistakes. The Motion was allowed, with the notice of appeal to be lodged within seven days and the record of appeal within thirty days thereafter. Costs of the Motion were reserved to the intended appeal. This ruling on an interlocutory application does not disturb the decision below.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted leave to file and serve notice of appeal out of time
  2. 2.Whether the applicant should be granted leave to file and serve the record of appeal out of time

Key legal issues

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01

Whether the delay of about two months in filing notice of appeal was inordinate and whether a satisfactory explanation existed

Holding

The delay of less than two months was not inordinate, and blame attributable to the applicant's previous counsel justified extension of time.

Reasoning

The court measured the delay from the delivery of the High Court judgment on 20 March 2025 to the application dated 15 May 2025, finding it less than two months. The applicant explained that his previous lawyer failed to file the appeal and that he instructed new counsel upon discovering the omission. The court accepted that a litigant should not be punished for his advocate's inaction and found the threshold for exercising discretion in the applicant's favour met.

p. 2

Legal principles established

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  • In exercising its discretion under rule 4 of the Court of Appeal Rules, the court considers a non-exhaustive set of relevant factors: period of delay, reason for delay, chances of the appeal succeeding, prejudice to the respondent, effect on public administration, importance of compliance with time limits, resources of the parties, and public importance of the issues.

Court orders

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  1. 1.Leave granted to the applicant to lodge notice of appeal within seven (7) days of the ruling
  2. 2.Leave granted to lodge the record of appeal within thirty (30) days thereafter
  3. 3.Costs of the Motion to be in the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya at Kerugoya
ELC Appeal Case No. E034 of 2022
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (leave to file appeal and record of appeal out of time)

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.

I am persuaded that the applicant meets the threshold where I should exercise my discretion in his favour. I allow the Motion.
p. 2Disposition - extension of time granted
Let the applicant lodge notice of appeal within seven (7) days of today and record of appeal within thirty (30) days thereafter. Costs of the Motion will be in the intended appeal.
p. 2Final orders
The applicant says that I should not punish him for mistakes of his previous lawyer; he says that the intended appeal has high chances of success where he intends to argue legal points including the jurisdiction of the Environment and Land Court which heard his first appeal.
p. 2Reason for delay - counsel's inaction

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, "Githuci v Ngunu & another (Civil Application E071 of 2025) [2025] KECA 1414 (KLR)", Case Analysis (2025). Civil Application (rule 4 Motion, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1414/eng@2025-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.