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Court of AppealDismissedNot stated in the judgment as provided

Mwangi & 2 others v Gichina (Administrator of the Estate of the Late Hanniel Gichina Mwangi) (Civil Application E107 of 2022) [2025] KECA 1554 (KLR)

Court of Appeal of Kenya
3 October 2025
DMD. K. Musinga
428 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicant delayed for years and could not choose between appeal and review.

What this practically means

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Executive summary

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This was an unopposed application under the Court of Appeal's extension-of-time jurisdiction seeking leave to file an appeal out of time against a ruling delivered on 26th January 2022. The underlying judgment of the Environment and Land Court in ELC Appeal No. 51 of 2017 was delivered on 23rd February 2018; the applicant filed a notice of appeal on 8th March 2018 but then instead pursued an application for review, which the learned judge dismissed on 26th January 2022 on the basis that under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules review could not lie where an appeal had been instituted. Musinga, JA (President of the Court of Appeal), sitting in Nairobi, applied the settled factors from Leo Sila Mutiso v Hellen Wangari: length of and reason for delay, chances of the appeal succeeding, and prejudice to the respondent. He found the delay from 2018 unexplained, observed that the applicant had vacillated between appeal and review and could not have it both ways, and noted a further unexplained delay of nearly a month in filing the extension application after the review ruling. The application was dismissed and, as the respondent filed no response, no orders as to costs were made. The decision reviews no appeal outcome; it is a first-instance discretionary ruling of the Court of Appeal refusing to admit a further appeal.

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 extension of time to file an appeal out of time against the ruling of 26th January 2022 dismissing the application for review

Key legal issues

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01

Whether extension of time to appeal should be granted

Holding

Extension refused. The delay from the 2018 judgment and the further delay after the January 2022 review ruling were inordinate and unexplained; the applicant had vacillated between appeal and review.

Reasoning

Applying the settled discretionary factors from Leo Sila Mutiso v Hellen Wangari, the court found the delay from the 23rd February 2018 judgment unexplained, the applicant indecisive between appeal and review, and a further near-one-month delay after the 26th January 2022 ruling likewise unexplained. On those factors the discretion was exercised against the applicant and the application dismissed, with no costs given the respondent's non-participation.

p. 2

Legal principles established

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  • The decision whether or not to extend time for appealing is essentially discretionary, and the court considers the length of and reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent.
  • A party cannot simultaneously pursue an appeal and an application for review of the same judgment; a review cannot lie once an appeal has been instituted.

Court orders

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  1. 1.The application for extension of time is dismissed
  2. 2.No orders as to costs, the respondent having filed no response

The bench

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

DM
majority

Wrote the judgment

On appeal from
Environment and Land Court
ELC Appeal No. 51 of 2017
Jurisdiction invoked
Inherent discretion to extend time for filing an appeal (rule of the Court governing extension of time; application under the Court of Appeal procedure, invoking section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules as the subject-matter of the intended appeal)

Relief refused

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Extension of time to file an appeal out of time

Inordinate and unexplained delay in instituting the appeal and in filing the application after the review ruling

p. 2

Costs

No orders as to costs

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.

It is well settled that the decision whether or not to extend the time for appealing is essentially discretionary.
p. 1Discretionary nature of extension of time
the length of the delay; the reason for the delay; thirdly, the chances of the appeal succeeding if the application is granted, and fourthly, the degree of prejudice that may be occasioned to the respondent if the application is granted.
p. 2Factors for extension of time
A party cannot have it both ways.
p. 2Election between appeal and review
I find that there has been inordinate delay in coming to this Court. The reason for the delay has not been suficiently explained.
p. 2Inordinate delay
For those reasons, I am not inclined to grant the orders sought. Consequently, this application is dismissed. Since the respondent did not file any response, I make no orders as to costs.
p. 2Final orders and costs

Issues in the judgment

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minor

The certified copy is a single-judge ruling but the heading does not state the application or appeal number or the parties' names, and it is unclear whether the matter was a single-judge determination under Rule 54 or a full-bench decision (only one signature block appears).

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, "Mwangi & 2 others v Gichina (Administrator of the Estate of the Late Hanniel Gichina Mwangi) (Civil Application E107 of 2022) [2025] KECA 1554 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1554/eng@2025-10-03

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