Kamotho v Kamotho
The bottom line
#Kenya's Court of Appeal allowed a 28-day late appeal because the litigant's advocates never told her the ruling had been delivered.
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 delay of 28 days in lodging the Notice of Appeal was inordinate
- 2.Whether the reasons proffered for the delay were reasonable and excusable
- 3.Whether the intended appeal was arguable
- 4.Whether the respondent would suffer prejudice if the extension was granted
Key legal issues
#Whether a 28-day delay in filing a Notice of Appeal is inordinate
A delay of 28 days was not inordinate in the circumstances.
The impugned ruling was delivered on 20th March 2025 and the motion was filed on or about 17th April 2025, a delay of 28 days. The court held this period was not inordinate, exercising its Rule 4 discretion on the length-of-delay factor.
Whether the applicant's explanation for the delay was reasonable
The explanation - unawareness of the ruling despite frantic efforts to enquire from her advocates, evidenced by unanswered messages - was reasonable and sufficient.
The applicant deposed she was unaware of the delivery of the ruling and only learnt of it on 10th April 2025. Screenshots of messages to her then advocates, which elicited no response, corroborated this. The court found the reasons plausible and the delay sufficiently explained.
Whether the intended appeal was arguable
The court declined to determine arguability, holding it cannot do so sitting as a Single Judge on this application.
The judge expressly declined to delve into the arguability of the intended appeal, treating that factor as not determinable at this stage, and proceeded on the other Rule 4 factors.
Prejudice to the parties
The applicant would suffer prejudice if the motion was not allowed, as she would be ousted from the seat of justice; the extension was granted.
On the final Rule 4 factor, the court was satisfied that refusing the extension would completely lock the applicant out of the appellate process, an affront to fair hearing under Article 50 of the Constitution.
Legal principles established
#- In deciding whether to extend time under Rule 4, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- The Single Judge has wide but judiciously-exercisable discretion under Rule 4 to extend time.
Court orders
#- 1.The applicant's motion dated 17th April 2025 is allowed as prayed
- 2.Leave granted to file and serve a Notice of Appeal out of time against the ruling delivered in Nairobi ELC Case No. E300 of 2024 on 20th March 2025
- 3.The Notice of Appeal dated 15th April 2025 and filed on 19th April 2025 deemed properly filed
- 4.The applicant to file the intended appeal within 30 days from the date of the ruling, failing which the orders shall stand vacated
- 5.Costs of the motion to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court
- Nairobi ELC Case No. E300 of 2024
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules 2022, exercised by a Single Judge
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 28 days, which I do not consider to be inordinate.
Accordingly, the applicants motion dated 17th April 2025, is merited and the same is hereby allowed as prayed.
The applicant shall proceed to le the intended appeal within 30 days from the date of this ruling, failure to which these orders shall stand vacated.
The costs of this motion shall abide the outcome of the intended appeal.
Issues in the judgment
#Typographical error in the prejudice holding.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamotho v Kamotho", Case Analysis (2025). Civil Application E255 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2310/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.