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Court of AppealDismissedCivil Application (Notice of Motion dated 30th September 2024)· [2025] KECA 1552 (KLR)

Kiema v Ngutu (Civil Application E596 of 2024) [2025] KECA 1552 (KLR)

Court of Appeal
3 October 2025
1,151 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to extend time to appeal because the applicant waited months without explaining the delay—file your notice of appeal promptly, even before getting the judgment.

What this practically means

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Executive summary

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Margaret Thumbi Kiema moved the Court of Appeal by notice of motion dated 30th September 2024 under rule 4 of the Court of Appeal Rules, seeking an extension of time to appeal from the judgment of the Environment & Land Court at Makueni of 5th June 2024, which had dismissed her suit seeking a declaration that she was the lawful owner of Kitengei B Settlement Scheme Adjudication No. 324. She attributed the delay to her former advocate's failure to notify her of the judgment, saying she learned of it on 10th June 2024, and relied on Mwangi v Kenya Airways and Chemaringo v Kibet. The respondent, Daudi Mutule Ngutu, opposed, contending the delay was inordinate and unexplained, that no notice of appeal had even been filed, and that the intended appeal was an afterthought; he relied on Bartilol, Salat and Mathane. M'Inoti, JA, restated the settled principles from Salat and Leo Sila Mutiso: extension of time is an equitable, discretionary remedy for deserving parties, assessed on the length of and reason for delay, the chances of success and the prejudice to the respondent. The court found the delay inordinate and unexplained: the applicant did not disclose or obtain an affidavit from the alleged defaulting advocate, took over three months to apply after learning of the judgment, and a further ten months to serve the application. The court stressed that a notice of appeal requires neither the judgment nor proceedings, and that the applicant failed to demonstrate greater prejudice. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the delay in seeking extension of time was inordinate and satisfactorily explained

Holding

The delay was inordinate and unexplained: the applicant's advocate was not named or heard from, and the applicant waited over three months after learning of the judgment, and a further ten months to serve the application.

Reasoning

The court held that blaming an unnamed advocate without his affidavit or explanation was unsatisfactory, and that the applicant, who learned of the judgment within five days, had adequate time to file a notice of appeal yet took over three months to apply and ten more months to serve the respondent. A notice of appeal is a simple formal document that does not require the judgment or proceedings.

p. 3
02

Whether the discretion under rule 4 should be exercised in the applicant's favour

Holding

The discretion was declined because the applicant failed to lay a sufficient basis and did not show greater prejudice than the respondent would suffer.

Reasoning

Applying the Salat and Mutiso factors, the court found that extension of time is equitable and only for deserving parties; the applicant bore the burden of laying a basis to the court's satisfaction, failed to explain the delay, did not demonstrate merits sufficient to outweigh the delay, and did not show she stood to suffer greater prejudice than the respondent.

p. 3
03

Applicability of section 79G CPA and Order 50 rule 6 CPR jurisprudence to rule 4 applications

Holding

The applicant's submissions premised on section 79G of the Civil Procedure Act and Order 50 rule 6 of the Civil Procedure Rules, and decisions thereon, were erroneous as those provisions do not apply to rule 4 applications.

Reasoning

The court noted that the applicant's written submissions wrongly rested on section 79G of the Civil Procedure Act and Order 50 rule 6 of the Civil Procedure Rules and decisions of superior courts below; those provisions and decisions govern extension within the lower court framework and are not applicable to an application under rule 4 of the Court of Appeal Rules.

p. 1

Legal principles established

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  • Extension of time under rule 4 is discretionary and equitable, available only to deserving parties, and the applicant bears the burden of explaining the delay.
  • A notice of appeal need not await the judgment or proceedings; absence of a judgment does not justify delay in lodging a notice of appeal.
  • In ruling on extension of time the court considers the length of and reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent.

Court orders

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  1. 1.The notice of motion dated 30th September 2024 seeking extension of time to appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 50 rule 6

Cases cited (8)

  • Mwangi v. Kenya Airways Ltd
    [2003] eKLR
  • Andrew Kiplagat Chemaringo v. Paul Kipkorir Kibet
    [2018] eKLR
  • Bartilol & 3 others v. Bartilol & Another
    [2024] KECA 607 (KLR)
  • Nicholas Kiptoo Korir Arap Salat v IEBC
    [2014] eKLR
  • Paul Wanjohi Mathane v. Duncan Gichane Mathenge
    [2013] eKLR
  • Leo Sila Mutiso v. Rose Hellen Wangari Mwangi
    CA No. Nai. 255 of 1997
  • Fakir Mohamed v. Joseph Mugambi & 2 Others
    CA. No. Nai 332 of 2004
  • Imperial Bank Ltd (In Receivership) & Another v. Alnashir Popat & 18 Others
    [2018] eKLR
On appeal from
Environment & Land Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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, "Kiema v Ngutu (Civil Application E596 of 2024) [2025] KECA 1552 (KLR)", Case Analysis (2025). Civil Application (Notice of Motion dated 30th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1552/eng@2025-10-03

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