Resoluterise Community Based Organization v Ntutu & 2 others (Civil Application E087 of 2025) [2026] KECA 8 (KLR)
The bottom line
#Kenya's Court of Appeal restored a community group's right to appeal, ruling that a full bench can correct a single judge who overlooked a relevant issue.
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 full bench on a reference may interfere with the single Judge's exercise of discretion in dismissing the application for extension of time
- 2.Whether the orders of 16th July 2025 in Civil Application No. Nak E037 of 2025 and No. Nai E177 of 2025 conferred party status on the applicant or directed it to file an appeal
- 3.Whether the applicant had good reasons for the delay in filing the record of appeal out of time
- 4.Whether the respondents would suffer prejudice if extension of time were granted
Key legal issues
#Threshold for interference with a single Judge's discretionary decision on a reference
The full bench interferes only where the single Judge took into account an irrelevant matter, failed to consider a relevant matter, misapprehended the evidence or law, or where the decision is plainly wrong.
A reference is not an appeal; a single Judge exercises discretion on behalf of the court, and the fact that a full court might have decided differently is irrelevant. Here the parties never took up, and the single Judge never considered, the actual question of whether there were good reasons for the delay in filing the record of appeal, so a relevant matter was left unaddressed.
Interpretation of the ambiguous orders of 16th July 2025 and joinder of the applicant
The court declined to interpret the ambiguous orders, holding instead that the applicant had not applied for joinder and that it was wrong to advance such an argument, but that rule 77 imposes no joinder condition on an affected party.
The court found the order No. 5 on filing and serving the appeal open to different interpretations and refused to be drawn into resolving the ambiguity, terming it the wrong path the parties led the court down. The decisive point was that rule 77 does not require prior joinder, and an affected party may support or oppose an appeal without making new prayers.
Extension of time to file the record of appeal
The single Judge's dismissal of the extension-of-time application was set aside because all the applicant's reasons for the delay were never considered; extension of time was granted with tight timelines to fit the pending hearing date.
The only issue properly before the single Judge was whether there were good reasons for the delay, given that the ELC proceedings were certified by the Deputy Registrar on 11th December 2024. Since that issue was not considered, the court substituted an order allowing the motion and set timelines compatible with the 27th January 2026 hearing date of Civil Appeal No. E052 of 2025.
Legal principles established
#- A full bench on a reference may interfere with a single Judge's discretion only on established grounds: taking into account an irrelevant matter, failing to take into account a relevant matter, misapprehending the evidence or law, or where the decision is plainly wrong.
- Rule 77 of the Court of Appeal Rules does not impose a condition that an affected party must have applied to be joined to proceedings below before filing a notice of appeal as an affected party.
- An affected party who has filed a notice of appeal under rule 77 can only support or oppose the appeal and cannot make new prayers in the appeal.
- The primary objective of rule 4 is to ensure that the door of justice is not closed to a deserving party, but the court may shut the door to an undeserving party; each application is determined on its own merits.
Court orders
#- 1.Reference allowed
- 2.Orders of the single Judge dated 21st October 2025 set aside
- 3.Substituted with an order allowing the Notice of Motion dated 13th August 2025 for extension of time
- 4.Applicant to file and serve the record of appeal, submissions and bundle of authorities by 21st January 2026
- 5.Respondents to file and serve written submissions and bundle of authorities by 23rd January 2026
- 6.Appeal once filed to be fixed for hearing on 27th January 2026
- 7.Deputy Registrar to be served with the ruling to make arrangements for hearing of the two appeals
- 8.Costs of the application and the reference to abide the outcome of the appeals
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya (single Judge, M Warsame, JA)
- Civil Application No. Nai E177 of 2025 (ruling dated 21st October 2025)
- Jurisdiction invoked
- Rule 57 of the Court of Appeal Rules 2022 (reference to full bench from single Judge's ruling under rule 4)
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.
In the result, we allow the reference, set aside the orders of the single Judge dated 21st October 2025 and substitute therefore an order allowing the Notice of Motion dated 13th July 2025.
Accordingly, we direct that the applicant shall file and serve the record of appeal, together with the submissions and bundle of authorities, by 21st January 2026.
Finally, the costs of the application and the reference shall abide by the outcome of the appeals. It is so ordered.
The primary objective of rule 4 is to ensure that the door of justice is not closed to a deserving party. However, the court should not hesitate to firmly shut the door to an undeserving party after considering all relevant facts and the law.
The full bench of this court can only interfere with the exercise of that discretion only if it is shown that in exercise of his discretion, the single Judge took into account an irrelevant matter which ought not have been taken into account, or failed to take into account a relevant matter that should have been taken into account or misapprehended some part of the evidence and the law applicable or that the decision is plainly wrong
Issues in the judgment
#The judgment inconsistently dates the applicant's notice of motion as 13th August 2025 in paragraph 7 and as 13th July 2025 in the final orders.
The judgment refers inconsistently to the 1st respondent's application orders date, stating 'orders of 16th July 2024' in paragraph 7 where 2025 is evidently meant, and the single Judge's quoted ruling refers to orders of '16th July 2024' in the 1st respondent's submissions.
The 2nd respondent refers to its appeal as Civil Appeal No. E052 of 2024 in paragraph 24 while the judgment elsewhere consistently uses Civil Appeal No. E052 of 2025.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Resoluterise Community Based Organization v Ntutu & 2 others (Civil Application E087 of 2025) [2026] KECA 8 (KLR)", Case Analysis (2026). Reference from Civil Application No. Nai E177 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/8/eng@2026-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.