Nzuve (Suing as the Legal Representative of the Estate of Reuben Nzuve Mwangangi - Deceased) v Musau & another (Civil Appeal (Application) E102 of 2025) [2025] KECA 2128 (KLR)
The bottom line
#The Court of Appeal refused to excuse a three-year delay in filing an appeal because the applicant offered no solid evidence explaining it.
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 deceased plaintiff, Reuben Nzuve Mwangangi, should be substituted by the applicant as his legal representative
- 2.Whether time should be extended for filing and serving the Notice of Appeal and substantive appeal against the ruling of 8th February 2022
- 3.Whether the Land Registrar, Makueni County should be ordered to provide official searches of the suit titles
- 4.Whether the reasons offered for the delay of about three years in filing the appeal were plausible and reasonable
Key legal issues
#Whether the delay of about three years in filing the appeal should be excused under Rule 4 of the Court of Appeal Rules
The delay was inordinate and the explanations advanced - advanced age, illness, the death of the plaintiff and negligence of former advocates - were not supported by evidence; the delay was not sufficiently explained and extension of time was refused.
The court applied the settled Rule 4 principles from Mwangi v Kenya Airways Limited and Leo Sila Mutiso v Rose Hellen Wangari Mwangi. The delay from 8th February 2022 to 21st February 2025 was about three years and inordinate. The medical document relied on was dated 30th January 2025, long after the impugned ruling, and no evidence supported the claim of advocate negligence. The applicant therefore failed to satisfy the Rule 4 principles.
Whether the intended appeal was arguable
The court declined to determine arguability, holding that a Single Judge cannot make such a determination on the material before it in this application.
On the third Rule 4 factor (chances of the appeal succeeding), the single judge held that she could not make a determination of the issue sitting as a Single Judge and would not delve further into it. The application therefore turned principally on the length of the delay, the reasons for it and prejudice.
Legal principles established
#- The Court has wide and unfettered discretion under Rule 4 to extend time, but that discretion must be exercised judiciously, taking into account the length of the delay, the reason for the delay, the chances of the appeal succeeding and the degree of prejudice to the respondent.
- Where the reasons offered for delay are unsupported by evidence, the delay is not sufficiently explained and extension of time will be refused.
Court orders
#- 1.The applicant's motion dated 21st February 2025 is dismissed in its entirety
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (ELC) at Makueni
- ELC Civil Case No. 40 of 2019-Makueni
- Jurisdiction invoked
- Rules 4 and 102(1) of the Court of Appeal Rules 2022, Order 24 Rule 7 of the Civil Procedure Rules 2010, Section 3A of the Appellate Jurisdiction Act and Article 159(2) of the Constitution of Kenya, 2010
Relief refused
#Substitution of the applicant as legal representative of the deceased plaintiff
Dismissed as part of the motion which was found to be without merit
Extension of time to file and serve the Notice of Appeal and substantive appeal
The delay of about three years was inordinate and the reasons for the delay were not plausible or reasonable and were unsupported by evidence
Order directing the Land Registrar, Makueni County to provide official searches of land titles Makueni/Mutiswa/1878 and Makueni/Mutiswa/1879
Dismissed as part of the motion which was found to be without merit
Costs
No order as to costs
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.
The Court has wide and unfettered discretion in deciding whether to extend time or not. However, in exercising its discretion, the Court should do so judiciously.
There has therefore been a delay of about 3 years, which I consider to be inordinate.
I consider the reasons given for the delay not to be reasonable/ plausible and ultimately therefore, I am of the considered opinion that the delay herein has not been suficiently explained to the satisfaction of this Court.
Accordingly, the applicant’s motion dated 21st February 2025, is without merit and the same is hereby dismissed in its entirety with no order as to costs.
Issues in the judgment
#The judgment states that it has not been demonstrated that the applicant would suffer prejudice if the motion is not allowed, whereas the prejudice factor in the Rule 4 principles it applies concerns prejudice to the respondent, creating an apparent internal inconsistency in the application of the principles.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nzuve (Suing as the Legal Representative of the Estate of Reuben Nzuve Mwangangi - Deceased) v Musau & another (Civil Appeal (Application) E102 of 2025) [2025] KECA 2128 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2128/eng@2025-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.