Mark Kithinji Mbatiah v Najahait Faizal Hightower Alias Hightower Faizal Wilber Earl (sued As The Legal Representative of The Estate of Wilber Hightower (deceased))
The bottom line
#Kenya's Court of Appeal refused to extend time for an appeal because a seven-month unexplained delay and doubtful medical evidence showed the applicant was unworthy of an equitable remedy.
What this practically means
#Executive summary
#Key legal issues
#Whether the absence of a filed notice of appeal ousts the Court's jurisdiction to hear an extension-of-time application
Rule 4 allows an application for extension of time either before or after the act, so an applicant may seek extension before filing a notice of appeal; the jurisdictional objection fails.
The respondent relied on Apungu Arthur Kibira, Bogonko and Tsilla Nkirote Muthomi, but the court distinguished them: Kibira concerned an appeal already filed on a defective notice, and Muthomi was a stay-of-execution application. The plain words of rule 4, 'whether before or after the doing of the act', cover pre-filing applications. Salat, a Supreme Court decision, speaks to practice in that Court, not here.
Whether the applicant's illness satisfactorily explained the seven-and-a-half-month delay
No. The applicant had lived with the condition since 2017 and conducted the trial with it; the medical report was contrived for the application; no deterioration after judgment was shown.
The only explanation was illness since 2023. The attached report attributed to 'Dr. Paul' was viewed as tailor-made and lacking genuineness. The applicant had managed the ELC trial despite the condition, and there was no evidence of supervening illness after the 30 January 2025 judgment. A notice of appeal is a simple one-page document requiring no special effort. The court found the applicant had attempted to mislead it.
Whether Article 159(2)(d) and the Court's inherent jurisdiction override statutory timelines
No. Timelines serve Article 159(2)(b) (justice not delayed) and cannot be dismissed as technicalities; inherent powers cannot displace an express rule.
Relying on Odinga v IEBC, the court held Article 159(2)(d) was never meant to oust compliance with procedural imperatives; constitutionally decreed timelines are not undue proceduralism. Since rule 4 expressly governs extension of time, the applicant must bring himself within that rule rather than invoke residual inherent powers.
Legal principles established
#- Rule 4 permits an extension of time application whether made before or after doing the act, including before filing a notice of appeal or after filing it out of time.
- Extension of time is an equitable remedy granted on reason, not as of right; lack of candour disqualifies an applicant.
- Procedural timelines cannot be wished away as mere technicalities under Article 159(2)(d); the Court's inherent powers cannot be invoked where rule 4 expressly regulates extension of time.
- Where the delay is inordinate and unexplained, the Court need not consider the other extension-of-time factors.
Court orders
#- 1.Dismissal of the application dated 19th August 2025 seeking extension of time to file a notice of appeal
- 2.Costs of the application to the respondent
- On appeal from
- Environment & Land Court at Meru
- Suit over LR No Ntima/Igoki/1496 (number not stated)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time); Article 159(2)(d) of the Constitution invoked by applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mark Kithinji Mbatiah v Najahait Faizal Hightower Alias Hightower Faizal Wilber Earl (sued As The Legal Representative of The Estate of Wilber Hightower (deceased))", Case Analysis (2025). Application dated 19th August 2025 (Court of Appeal, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1833/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.