Tongkwang & another v Lokere & another (Civil Application E077 of 2025) [2026] KECA 32 (KLR)
The bottom line
#Kenya's Court of Appeal gave a company extra time to appeal after its lawyer's innocent filing-fee mistake, confirming honest explanations for delay can win forgiveness.
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 has met the threshold for the exercise of the court's discretion to merit an extension of time to file and serve the notice of appeal and the record of appeal
- 2.Whether the letter requesting typed proceedings dated 30th September 2025 should be deemed properly filed and served
Key legal issues
#Whether the delay of about 37 days in filing the notice of appeal was excusable
The delay was the result of an inadvertent mistake of counsel in failing to pay the requisite filing fees after timely uploading the notice of appeal, was not inordinate, and was excused.
The court applied the Chemaringo threshold that a plausible and satisfactory explanation is the key to discretionary favour, and Madan JA's dictum in Murai v Wainaina that mistakes should be rectified where the interests of justice dictate. It found the application itself was timely filed, the delay was about 37 days, the draft memorandum disclosed eleven arguable grounds, and the respondents would suffer no prejudice.
Whether the appeal was arguable and whether the respondents would suffer prejudice
The eleven grounds in the draft memorandum of appeal showed the appeal was arguable, and the respondents would not be prejudiced by the extension.
The court examined the draft memorandum of appeal and expressed satisfaction that the grounds were arguable. On prejudice, it balanced the applicant's right of appeal against the respondents' entitlement to the fruits of judgment, concluding that the respondents would suffer no prejudice if the application were granted while the applicant would be prejudiced if denied the right of appeal.
Legal principles established
#- There is no fixed minimum or maximum period of delay for extension of time; what is required is a satisfactory explanation for the delay, and the court also considers prejudice to the respondent.
- A mistake by counsel, even by senior counsel, is not a bar to relief; the court should rectify it where the interests of justice so dictate.
Court orders
#- 1.Time extended for filing and serving the notice of appeal and the record of appeal
- 2.The notice of appeal dated 30th September 2025 deemed as properly filed and served
- 3.The applicant directed to file and serve the record of appeal within 45 days of the ruling
- 4.Costs of the application to abide the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court (inferred; not expressly stated)
- Not stated
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution, sections 3 and 3A of the Appellate Jurisdiction Act Cap 9 and rule 4 of the Court of Appeal Rules 2022
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.
A plausible and satisfactory explanation for delay is the key that unlocks the court's fiow of discretionary favour.
A mistake is a mistake. It is no less a mistake because it is an unfortunate slip.
Therefore, the application dated 5th November 2025 is allowed. The annexed notice of appeal dated 30th September 2025 is hereby deemed as properly filed and served.
The applicant is directed to file and serve the record of appeal within 45 days of this ruling. Costs of this application shall abide the appeal.
Issues in the judgment
#The judgment contains typographical errors (e.g. 'stafi enquired', 'fiow of discretionary favour', 'sufier'), and the letter requesting proceedings is dated '30/09/205' in the prayers, apparently an error for 30/09/2025.
The applicant describes itself as the '2nd applicant' although only one applicant exists before the court; the court noted this misnomer.
The parties are inconsistently counted in the judgment: paragraph 9 refers to the application being 'timely filed on 5th November 2025 which is 37 days after lapse' whereas paragraph 6 (submissions) describes it as 'barely 50 days from the date of delivery of the judgement'; both figures are retained in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tongkwang & another v Lokere & another (Civil Application E077 of 2025) [2026] KECA 32 (KLR)", Case Analysis (2026). Not stated in the judgment (notice of motion dated 5th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/32/eng@2026-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.