Kamande v Kiarii
The bottom line
#The Court of Appeal refused to extend time for a late appeal, so the Kshs 1,087,000 refund order against the applicant stands.
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 should be granted leave to appeal out of time against the High Court judgment of 27th June 2024
- 2.Whether the applicant made out a case or presented material on which the Court can exercise its discretion in her favour
Key legal issues
#Compliance with Rule 77 (filing notice of appeal within 14 days)
The notice of appeal was filed out of time; even on the applicant's own dates it was lodged after the 11th July 2024 deadline.
Judgment was delivered on 27th June 2024, so the notice of appeal was due by 11th July 2024. The applicant's own grounds and supporting affidavit gave conflicting dates (20th August 2024 vs 12th July 2024), and the exhibited notice bore 12th July 2024 - in either event late.
Compliance with Rule 79 (service of notice of appeal within 7 days of lodging)
Not complied with; service occurred on 20th August 2024, well beyond the seven-day period.
Rule 79 requires service before or within seven days after lodging. The applicant's advocate deponed that the notice was served on 20th August 2024, over a month after the latest permissible filing date, demonstrating non-compliance.
Compliance with Rule 84 proviso (bespeaking proceedings within 30 days and serving the letter)
The letter bespeaking proceedings was made outside 30 days and was not copied to the respondent.
The letter of 20th August 2024 was outside the 30-day window from the 27th June 2024 decision and was not served on the respondent, so the applicant could not benefit from the proviso to Rule 84.
Whether the discretion under Rule 4 should be exercised in the applicant's favour
Dismissed - no satisfactory explanation for the delays, including the delay in bringing the application itself until 28th February 2025.
Applying Fakir Mohamed and Salat, the court found no tangible demonstration of diligence, no plausible explanation for the delay in filing the application, and an unhelpful certificate of delay; the applicant failed to discharge the burden of laying a basis for extension.
Legal principles established
#- The Court of Appeal's discretion under Rule 4 to extend time is unfettered but must be exercised judicially, considering relevant factors such as delay, reason for delay, chances of appeal succeeding, and prejudice.
- Extension of time is not a right but an equitable remedy available to a deserving party at the court's discretion, and the applicant bears the burden of laying a basis to the court's satisfaction.
Court orders
#- 1.The application dated 28th February 2025 is dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Kiambu
- HCCA No. E425 of 2023
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (unfettered discretion to extend time), read with Rules 77, 79 and 84
Relief refused
#Leave to appeal out of time against the High Court judgment
No satisfactory explanation for the delays in filing the notice of appeal, serving it, and bespeaking proceedings; application itself filed late
Admission of the proposed record of appeal
Follows from refusal of extension of time; notice of appeal was filed out of the 14-day period under Rule 77
Priority hearing of the proposed appeal
Follows from dismissal of the application
Costs
The application dated 28th February 2025 fails and is hereby dismissed with costs to the 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.
The application dated 28th February 2025 fails and is hereby dismissed with costs to the respondent.
Although the court has unfettered discretion under Rule 4 of the Court of Appeal Rules to extend time, that discretion should be exercised judicially.
I am not satisfied that an explanation, least of all a satisfactory explanation, has been given for the delays involved.
The period of delay, the reason for the delay, (possible) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the e ect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance - are all relevant but not exhaustive factor
Issues in the judgment
#Conflicting dates for the notice of appeal across grounds, affidavit and exhibit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamande v Kiarii", Case Analysis (2025). Civil Application E119 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2266/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.