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Court of AppealDismissedMotion dated 25th July, 2025 (rule 4 application, Court of Appeal at Nyeri)· [2025] KECA 1747 (KLR)

Gitonga Gerrard Ndii & 7 others v The County Government of Tharaka Nithi

Court of Appeal of Kenya
24 October 2025
853 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicants never explained their delay, and had already paid the licence fees in dispute.

What this practically means

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Executive summary

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In a single-Judge ruling delivered at Nyeri on 24th October 2025, Kantai, JA dismissed prayers 5 and 6 of a motion dated 25th July 2025 in which the applicants, Gitonga Gerrard Ndii and another, sought leave to appeal and extension of time to appeal out of time against a ruling of Gitari, J. of the High Court at Chuka delivered on 9th April 2025 dismissing Chuka Constitutional Petition No. E002 of 2024. The applicants attributed their delay to systemic and administrative hurdles: the trial Judge's transfer to Kitui, movement of the physical file, and the ruling only being uploaded to the Judiciary's electronic portal on 9th May 2025. The respondent, Tharaka Nithi County Government, through its County Attorney, opposed the application, pointing out that a Notice of Appeal had been filed on 10th April 2025 but the record of appeal was not filed within 60 days, that no Certificate of Delay was exhibited, and that the applicants had already paid the requisite Single Business Permit Fees so the litigation was overtaken by events and the public body would suffer continued disruption of its lawful licensing functions. Applying the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the Judge held that the applicants had not explained a further period of over two and a half months between the ruling being availed and the making of the application, that the intended appeal had no chances of success given the payment of licences, and that the applicants were not entitled to the exercise of discretion in their favour. The application was dismissed with costs to the respondent.

Key legal issues

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01

Reason for the delay

Holding

The delay of over 2½ months from the ruling being uploaded to the electronic platform (9th May 2025) to the making of the application (25th July 2025) was unexplained and unreasonable

Reasoning

The court acknowledged the applicants' claim that systemic and administrative hurdles (transfer of the Judge, movement of the physical file, delayed upload of the ruling) caused the initial delay, but found that the applicants did not explain the further period of over two and a half months between availing of the ruling and the filing of the application, so the total delay was not reasonably accounted for.

p. 3
02

Chances of the appeal succeeding

Holding

The intended appeal had no chances of success because the applicants had already paid the requisite Single Business Permit Fees, meaning the underlying dispute was overtaken by events

Reasoning

The respondent produced evidence of payment of licence fees by the applicants. The court took this into account both on prejudice/overtaken-by-events and on the merits factor, reasoning that since the trial Judge had dismissed the petition and the licences had been paid for, the intended appeal stood no realistic prospect of success, one of the Mutiso principles.

p. 3
03

Exercise of discretion on extension of time

Holding

Discretion must be exercised on sound judicial principles per Leo Sila Mutiso v Rose Hellen Wangari Mwangi, and on the facts the applicants were not deserving of the equitable remedy

Reasoning

The court applied the settled four-factor Mutiso test: length of delay, reason for delay, arguability of the appeal, and prejudice to the respondent. The respondent, a public body, would suffer continued disruption of its lawful licensing functions, and the applicants failed to establish sufficient cause. On balance the discretion was exercised against the applicants.

p. 2

Legal principles established

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  • Extension of time under rule 4 is discretionary and is governed by the length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent

Court orders

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  1. 1.Dismissal of prayers 5 and 6 of the Motion dated 25th July 2025 (leave to appeal and extension of time)
  2. 2.Costs of the application to the respondent
On appeal from
High Court of Kenya at Chuka
Chuka Constitutional Petition No. E002 of 2024
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (extension of time) with leave to appeal under the Court's single-Judge powers

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, "Gitonga Gerrard Ndii & 7 others v The County Government of Tharaka Nithi", Case Analysis (2025). Motion dated 25th July, 2025 (rule 4 application, Court of Appeal at Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1747/eng@2025-10-24

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