Ndwiga v Muthanje (Civil Appeal (Application) 40 of 2020) [2025] KECA 2102 (KLR)
The bottom line
#Kenya's Court of Appeal revived an appeal that had stalled because the applicant struggled to find out who had taken over a deceased party's estate.
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 reference from the single Judge's ruling dismissing the Motion dated 3rd September, 2024 should be allowed
- 2.Whether the Judge ought to have exercised his discretion to allow extension of time for joinder of the respondent's legal representative, revival of the abated appeal, and substitution of Nguu Gakindu as the respondent's legal representative
- 3.Whether there was a reasonable (as opposed to inordinate) explanation for the delay in seeking revival and substitution
Key legal issues
#Whether the delay between the grant of letters of administration (21st September 2021) and the application of 3rd September 2024 was inordinate and unexplained
The full Court found that the Judge erred in failing to appreciate the evidence of the applicant's efforts to obtain information, and that the delay was not inordinate; the Judge should have exercised his wide discretion in favour of the Motion.
The applicant had written a letter dated 5th March 2024 to the respondent's advocates enquiring whether a grant had been issued, which went unanswered, and only through frantic efforts established that a grant had been made to Nguu Gakindu on 21st September 2021. The Court held that in a rural setting such information may not be readily available, providing a reasonable explanation for the delay, and that the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act favoured determination of the appeal on the merits.
The nature and handling of a reference from a single judge's decision under rule 57 of the Court of Appeal Rules, 2022
A reference is not an appeal; the requirements of informal application or written application to the Registrar within seven days were satisfied, and no additional evidence was adduced before the full Court.
The Court recited rule 57(1), noted that the request must be made informally to the Judge or within seven days of the ruling, and that no additional evidence is permitted upon such a reference. The applicant's request by letter dated 27th December 2024 was made within seven days of the ruling delivered on 20th December 2024, and the reference was decided on the record of the Motion before the single Judge.
Legal principles established
#- A reference from the decision of a single judge is not an appeal and must be handled with corresponding caution by the full Court.
- Under rule 57 of the Court of Appeal Rules, 2022, a person dissatisfied with a single judge's decision in a civil matter may apply informally to the judge at the time of the decision or in writing to the Registrar within seven days, and no additional evidence may be adduced on the reference.
- In applying the overriding objective, particularly in a rural setting where information may not be easily available, a delay occasioned by difficulty in obtaining information may be reasonable rather than inordinate, and the Court's wide discretion should be exercised in favour of having an appeal determined on the merits.
Court orders
#- 1.The reference is allowed
- 2.The Motion dated 3rd September, 2024 is allowed
- 3.No order on costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya (decision of a single Judge, Muchelule, JA)
- Not stated in the judgment
- Jurisdiction invoked
- Rule 57(1) of the Court of Appeal Rules, 2022 (reference from the decision of a single judge, under the proviso to section 5 of the Appellate Jurisdiction Act)
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.
We allow the reference. The Motion dated 3rd September, 2024 is allowed. We make no order on costs.
We think in the circumstances that the Judge should have exercised his wide discretion and allowed the Motion. There was reasonable explanation for delay which was not inordinate in the circumstances.
We are aware that a reference from the decision of a single Judge is not an appeal, and we have to be careful how we deal with the reference.
We take it that, particularly in a rural setting where information may not be easily or readily available that it may not be easy to obtain information in a timely manner which could lead to delay in complying with timeliness for doing on time what the law requires.
Issues in the judgment
#The name of the appointed legal representative is inconsistently rendered within the judgment itself ('Gakindu' and 'Gakundi')
The judgment does not state the case number or the parties' full case caption for the appeal/reference, and the applicant is referred to both as appellant (in the underlying appeal) and applicant (in the reference)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndwiga v Muthanje (Civil Appeal (Application) 40 of 2020) [2025] KECA 2102 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2102/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.