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Court of AppealPartially AllowedCivil Appeal (Application) E121 of 2024· [2025] KECA 2183 (KLR)

Wandeto v Kiragu & another

Court of Appeal
16 December 2025
PGP M Gachoka
851 words in judgment
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The bottom line

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Kenya's Court of Appeal excused a one-month delay in filing an appeal, ruling that short delays deserve leniency even when the explanation is weak.

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 Nakuru (Gachoka, JA) on an application for leave to file a notice of appeal out of time under rule 4 of the Court of Appeal Rules 2022. The applicant, David Mwangi Wandeto, sought to challenge a ruling of the High Court at Nakuru (Muhochi, J) delivered on 29 October 2024 in HCCC No. E030 of 2021, dismissing his application for review. He explained that his counsel prepared a notice of appeal dated 5 November 2024 but inadvertently failed to file it owing to power and internet outages, and the omission was only discovered when preparing the record of appeal. The 1st respondent opposed, contending that no satisfactory reasons for the delay were given and that arguability had not been demonstrated by a draft memorandum of appeal. Applying the established rule 4 factors - merit of the appeal, prejudice to the respondent, and the period and length of delay - the court held that the delay of about a month was not inordinate. Although it described the explanation of an honest mistake as 'feeble', it exercised its discretion in the interest of justice and allowed the application. The applicant was ordered to file his notice of appeal within 7 days, with the costs of the application to abide the outcome of the appeal. The decision below was not disturbed; the ruling concerns only access to the appellate process.

Key legal issues

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01

Whether the delay of about a month in filing the notice of appeal should be excused under rule 4

Holding

Yes. The delay was not inordinate; the explanation, though feeble, sufficed and the applicant was granted leave to file the notice of appeal within 7 days.

Reasoning

The court applied the settled rule 4 factors: length of delay, merit of the intended appeal and prejudice to the respondent. The applicant filed the application about a month after the lapse of time, which the court held was not inordinate. Although the explanation of power and internet outages and an honest mistake was 'feeble', the court prioritised the interest of justice and the applicant's right to a day in court.

p. 2

Legal principles established

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  • In an extension-of-time application under rule 4, the court considers the merit of the appeal, prejudice to the respondent, and the period and length of delay.
  • A delay of about a month is not inordinate and may be excused in the interest of justice even where the explanation is feeble.

Court orders

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  1. 1.Leave granted to the applicant to file his notice of appeal out of time
  2. 2.Applicant to file his notice of appeal within 7 days from the date of the order
  3. 3.Costs of the application to abide the outcome of the appeal
On appeal from
High Court at Nakuru
HCCC No. E030 of 2021
Jurisdiction invoked
Articles 159(2)(a), (b), (d) and (e) of the Constitution; sections 3, 3A and 3B of the Appellate Jurisdiction Act; rules 4, 43 and 49 of the Court of Appeal Rules 2022

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wandeto v Kiragu & another", Case Analysis (2025). Civil Appeal (Application) E121 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2183/eng@2025-12-16

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