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Court of AppealDismissedNot stated in the judgment

Marwa v Chacha (Civil Appeal (Application) 103 of 2020) [2025] KECA 2151 (KLR)

Court of Appeal of Kenya
1 December 2025
ASAsike-Makhandia
1,386 words in judgment
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The bottom line

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The Court of Appeal refused to excuse a five-year delay in serving an appeal record, blaming counsel is not a defence, and late, reactive applications carry costs.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu (Asike-Makhandia, JA) dismissing an application for extension of time within which to serve a record of appeal, and for the record to be deemed properly filed and served. The application, though mis-founded under rule 5(2)(b) and article 159 of the Constitution, was treated as properly brought under rule 4 of the Court of Appeal Rules. The applicant claimed he believed the record had been served, blaming his counsel; the respondent countered that the record was filed three months after the notice of appeal, never served for five years, that the letter bespeaking proceedings was never served, and that the applicant ignored repeated demands for service and acted only when served with a pending striking-out application. Applying the settled Fakir Mohammed principles - length of and reason for delay, arguability, prejudice and conduct of the parties - the court found the applicant fell short on all fronts. The five-year delay was inordinate and unexplained; blaming counsel did not excuse the applicant, as parties must follow up on their own cases even when represented (citing the Supreme Court in Karinga Gaciani). Failure to serve the letter bespeaking proceedings meant the proviso to rule 84(2) could not operate, so the 60-day limit ran uninterrupted (Mae Properties). The application was also found to be a reactionary afterthought intended to defeat the striking-out application (Patrick Kiruja Kithinji; Dilpack Kenya Ltd). The application was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant had demonstrated sufficient cause under rule 4 of the Court of Appeal Rules to warrant extension of time to serve the record of appeal
  2. 2.Whether the blame placed on counsel's failure to serve the record of appeal could excuse the inordinate and unexplained delay
  3. 3.Whether failure to serve the letter bespeaking proceedings precluded invocation of the proviso to rule 84(2) in computing time
  4. 4.Whether the applicant's conduct, including ignoring the respondent's demands and filing the application only after a striking-out application, disentitled him to the court's equitable discretion

Key legal issues

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01

Extension of time under rule 4 of the Court of Appeal Rules

Holding

The application was refused because the applicant fell short on all the settled principles: the delay was inordinate and unexplained, the appeal prospects were not shown, prejudice was aggravated, and the applicant's conduct disentitled him to the equitable discretion.

Reasoning

The court applied the Fakir Mohammed principles. The three-month delay in filing and five-year delay in serving the record of appeal were unexplained. The applicant ignored the respondent's repeated demands for service and acted only when served with a striking-out application. Allowing the application would reward indolence and prejudice the respondent contrary to fair and timely disposal of appeals.

p. 3
02

Blame of counsel for delay

Holding

A litigant may be held responsible for counsel's mistakes where the litigant fails to demonstrate due diligence and personal responsibility in following up the case; the explanation that counsel let the applicant down did not sell.

Reasoning

While Kenyan law generally holds that mistakes of counsel should not be visited on an innocent litigant, the Supreme Court in Karinga Gaciani emphasized that parties must show interest in and follow up on their cases regardless of representation. The applicant's five-year inaction demonstrated indolence the court would not countenance.

p. 2
03

Computation of time and the proviso to rule 84(2)

Holding

Because the applicant never served the letter bespeaking proceedings on the respondent, the proviso to rule 84(2) could not be invoked, and the period taken to prepare proceedings could not be excluded from the computation of the 60-day limit.

Reasoning

The proviso applies only where the applicant requested proceedings and served the letter bespeaking proceedings on the respondent within 14 days of the judgment or ruling appealed against. Failure to serve means the 60-day limit runs uninterrupted, following Mae Properties Ltd v Joseph Kibe.

p. 3
04

Reactionary application as an abuse of the court's discretion

Holding

An extension-of-time application filed only after being confronted with a striking-out application is reactionary, an afterthought, and disentitles the applicant to the court's equitable discretion.

Reasoning

Relying on Patrick Kiruja Kithinji v Victor Mugira Marete and Dilpack Kenya Ltd v William Muthama Kitonyi, the court found the applicant was awoken from his slumber only by the respondent's striking-out application, and that such tactical conduct cannot be used to sanitize an irregular appeal.

p. 3

Legal principles established

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  • In an extension-of-time application under rule 4 of the Court of Appeal Rules, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, the degree of prejudice to the respondent, and the conduct of the parties.
  • Parties, not just their advocates, bear responsibility for following up on their cases; courts may visit the sins of counsel upon a litigant who fails to demonstrate due diligence.
  • Indolent litigants cannot use applications for extension of time to sanitize irregular appeals, and delay cannot be cured by filing an application only after being confronted with a striking-out motion.
  • Service of the letter bespeaking proceedings on the respondent is mandatory for invoking the proviso to rule 84(2); without it, the 60-day limit for filing the record of appeal runs uninterrupted.

Court orders

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  1. 1.The application for extension of time to serve the record of appeal and for the record to be deemed properly filed and served is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AS
majority

Wrote the judgment

Jurisdiction invoked
Article 159 of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules, treated as an application under rule 4 of the Court of Appeal Rules

Relief refused

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Extension of time within which to serve the record of appeal and deeming of the record as properly filed and served

Inordinate, unexplained five-year delay in serving the record and three-month delay in filing; failure to serve the letter bespeaking proceedings; negligence and lack of diligence; and a reactionary, afterthought application intended to defeat the respondent's striking-out application

p. 3

Costs

The application is dismissed with costs to the respondent

Quotable passages

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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 application is accordingly dismissed with costs to the respondent.
p. 3Final orders - dismissal
the applicant has not demonstrated any suficient cause to warrant the court's exercise of discretion under rule 4
p. 3Failure to demonstrate sufficient cause
The five-year delay in serving the record of appeal is unreasonable, unexplained, and aggravated by failure to serve the letter bespeaking proceedings, ignoring correspondence, and filing the application only as a reaction to the respondent's application to strike out the record of appeal.
p. 3Inordinate and unexplained delay
Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel and it does not matter whether the party is literate or not.
p. 2Party's responsibility for own case (quoting the Supreme Court)
the court held that service of the letter bespeaking proceedings is mandatory for invoking rule 84(2). Failure to serve means the 60-day limit runs uninterrupted.
p. 3Mandatory service of letter bespeaking proceedings

Issues in the judgment

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minor

The coram does not state the judge's full name or rank beyond the signature block, and the case number, parties' names and neutral citation are not stated in the judgment text, limiting identification of the decision.

minor

The application was brought under rule 5(2)(b) of the Court of Appeal Rules rather than the correct rule 4; the court treated it as made under rule 4.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Marwa v Chacha (Civil Appeal (Application) 103 of 2020) [2025] KECA 2151 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2151/eng@2025-12-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.