Njuguna v Nabala (Civil Application E100 of 2016) [2025] KECA 2072 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a bid to extend time because the applicant's lawyers cited a court ruling that apparently did not exist.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant has satisfied the legal threshold for the Court to exercise its discretionary jurisdiction under Rule 4 to enlarge time for filing and serving a reference out of time
- 2.Whether the Applicant has offered a satisfactory explanation for the delay
Key legal issues
#Discretionary jurisdiction under Rule 4 to extend time
The Court has broad and flexible discretion to extend time, exercised judiciously, guided by the length of the delay, the reason for the delay, the chances of success, and prejudice to the respondent; here the discretion could not be exercised at all because the impugned ruling was misidentified
Rule 4 grants an unfettered but judicially exercised discretion. The application sought leave to file a reference against a ruling allegedly delivered on 20th December 2018, yet no such ruling was annexed; instead a materially different ruling of 19th April 2021 was exhibited. Without a verifiable ruling date, the length and explanation of the delay cannot be evaluated, so the discretion cannot be invoked and the orders sought are incapable of being granted.
Duty of counsel in drafting applications
Counsel bear an incumbent duty of due care and attention in drafting pleadings; carelessness of the kind displayed subjects the client to undue anguish
The motion was described as an absurdity because the prayers referenced a ruling that was not attached and apparently does not exist, while submissions were premised on a different ruling. The Court used the dismissal as an occasion to caution the Bar, noting that such drafting errors waste judicial effort and prejudice clients.
Legal principles established
#- Where an applicant under Rule 4 references an incorrect date or a ruling that does not exist, the Court cannot exercise its discretion to extend time because it cannot ascertain when time began to run or whether the delay is inordinate or excusable
- Counsel drafting pleadings must exercise due care and attention; defective drafting that renders orders incapable of being granted exposes the client to undue anguish and the application to dismissal
Court orders
#- 1.The Notice of Motion dated 28th February 2025 is dismissed
- 2.Costs of the application awarded to the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rules 4 and 117 of the Court of Appeal Rules and Article 159(2)(d) of the Constitution
Relief refused
#Leave to file a reference out of time against the ruling of the taxing officer dated 20th December 2018
The motion suffered a significant and inherent defect: the ruling referred to in the prayers was neither annexed nor described in the body of the motion or supporting affidavit, so the Court could not determine when time began to run or whether the delay was inordinate or excusable
Deeming of the reference as duly filed
Follows from the refusal to extend time; the foundation for the Rule 4 discretion was wholly absent
Revision downwards of the taxed costs of Kshs. 3,057,650/=
The merits of the proposed reference could not be considered where the extension-of-time application failed; counsel also withdrew the stay of execution prayer as not properly before the Court
Costs
Dismissed with costs to the 1st Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In sum, I decline to exercise my discretion to extend time for filing of a reference out of time, and accordingly dismiss the Notice of motion dated 28th February 2025 with costs to the 1st Respondent. It is so ordered.
In the absence of a verifiable ruling date, the Court cannot properly invoke or exercise its discretion under Rule 4, as the foundation for such discretion—namely, the existence and timing of the impugned decision—is wholly absent
it remains incumbent on counsel drafting pleadings to exercise due care and attention to avoid such errors as this will only subject their client to undue anguish
Having attempted to discern whether the delay has been explained, our examination of the motion and the prayers sought point to a significant and inherent defect, as the ruling referred to in the prayers was not attached and it would seem that it does not exist
Issues in the judgment
#The judgment alternates between 'I' and 'we/us' in a single-judge judgment: 'our examination of the motion' and 'I decline to exercise my discretion'
The application was under Rule 4 but the framed issue speaks of enlarging time for 'filing and serving a notice of appeal' whereas the motion sought leave to file a reference out of time
Internal inconsistency in dates: the motion seeks a reference against a ruling of 20th December 2018, the replying affidavit and submissions refer to a taxation ruling of 19th April 2021, and the Respondent refers to a seven-year delay
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna v Nabala (Civil Application E100 of 2016) [2025] KECA 2072 (KLR)", Case Analysis (2025). Civil Application (Mombasa) - Notice of Motion dated 28th February 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2072/eng@2025-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.