Benedetta Mutunge Mulli v Annah Itumbi Mulli
The bottom line
#Kenya's Court of Appeal dismissed an appeal extension because the lawyer's 79-day unexplained delay could not be blamed on the court.
What this practically means
#Executive summary
#Key legal issues
#Standard for the full Court's interference with a single Judge's Rule 4 discretion
The full Court is very slow to interfere with a single Judge's exercise of unfettered discretion unless it is shown that the Judge misdirected himself, arrived at a wrong decision, or was clearly wrong causing misjustice.
Relying on Kenya Co-operative Creameries Ltd v Fims Ltd and Mbogo v Shah, the Court reiterated that a single Judge exercises Rule 4 discretion on behalf of the full Court. The reference applicant bears the burden of demonstrating that relevant principles were not observed. The full Court will not substitute its own view merely because it might have reached a different conclusion on the same facts.
Candour and personal responsibility of the applicant/advocate in explaining delay
A party seeking extension of time must give a plausible, candid account of the delay; unexplained inaction by counsel between the readiness of proceedings and application for a certificate of delay cannot be shifted to the court.
The proceedings were ready for collection on 29th March 2023, yet the applicant's counsel only requested a certificate of delay on 16th June 2023, a 79-day gap with no explanation. The certificate itself was issued within six days of the request. The Court held the delay arose from the advocate's inaction, not the court, and that shifting blame elsewhere and lack of candour did not assist the applicant.
Application of Rule 4 factors to the facts
The single Judge properly considered the length of the delay, the reasons given, and reached a conclusion on those factors; the applicant failed to show any error in that assessment.
The Court found that the single Judge considered the 79-day delay as inordinate and the explanation implausible. The applicant did not demonstrate that the single Judge took into account irrelevant factors, ignored relevant factors, misapprehended any point of law or fact, or was plainly wrong. The delay of 79 days was unexplained and inexcusable, and the court itself took only six days to issue the certificate of delay once requested.
Legal principles established
#- The single Judge exercising discretion under Rule 4 does so on behalf of the full Court, and the full Court will interfere only where it is demonstrated that the relevant principles were not observed.
- A litigant seeking extension of time must candidly own up to and satisfactorily explain any delay; blame-shifting and lack of candour are fatal to the application.
- The full Court will not interfere with a single Judge's Rule 4 decision merely because it might have reached a different conclusion; the applicant must show irrelevant factors were taken into account, relevant factors ignored, or that the decision was plainly wrong.
Court orders
#- 1.The reference dated 19th December 2023 challenging the ruling of Gachoka, JA. delivered on 15th December 2023 is found to be devoid of merit and is dismissed with costs to the respondent
- On appeal from
- Single Judge of the Court of Appeal (Gachoka, JA.)
- Application under Rule 4 of the Court of Appeal Rules; intended appeal from Nairobi Environment and Land Court (ELC) Case No. 205 of 2019
- Jurisdiction invoked
- Rule 55 (now Rule 57) of the Court of Appeal Rules - reference to full Court from the decision of a single Judge
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benedetta Mutunge Mulli v Annah Itumbi Mulli", Case Analysis (2025). Reference dated 19th December 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2066/eng@2025-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.