Lukwa (Suing as the Legal Representative of the Estate of the Late Julius Muhambi Amayi (Deceased) v Imbuusi (Civil Appeal (Application) E155 of 2025) [2026] KECA 92 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal record, ruling that pursuing a stay application justified a 409-day filing delay.
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 an extension of time to have the record of appeal filed out of time on 15th July, 2025 deemed duly filed within time
- 2.Whether the reason for the delay in filing the record of appeal was excusable
- 3.Whether the delay of 409 days was inordinate
- 4.Whether the intended appeal raises arguable issues and whether the respondent would suffer prejudice
Key legal issues
#Whether the delay in filing the record of appeal was inordinate and excusable
The delay, though lengthy, was not inordinate in the circumstances; the applicant's pursuit of a stay application before the trial court was an excusable reason for the delay.
The court accepted that the applicant filed her notice of appeal and letter bespeaking proceedings within time, and that her attention was diverted by the interlocutory stay application before the trial court, only disposed of by a ruling of 21st May 2025. Although the respondent computed a 409-day delay and alleged indolence, the court held that in the fog of battle the distraction justified the delay and that the interest of justice favoured hearing the appeal on its merits.
Whether failure to copy the letter bespeaking proceedings to the respondent disentitles an applicant under the proviso to Rule 84(1)
The court acknowledged the omission but did not treat it as fatal to the extension of time application.
The respondent's advocate deponed that because the applicant failed to copy the bespeaking letter to the respondent, she could not benefit from the proviso of Rule 84(1). The court recorded the omission but proceeded to assess the application on the Rule 4 principles, finding the explanation excusable and allowing the application, thereby implying that the omission was not by itself determinative.
Legal principles established
#- Rule 4 of the Court of Appeal Rules confers an unfettered discretion, exercised on settled principles: the reason for the delay, the length of delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- A delay explained by a litigant's pursuit of an interlocutory application for stay of execution before the trial court may be excusable and not inordinate in the circumstances.
Court orders
#- 1.The application for extension of time is allowed
- 2.The applicant is granted leave to file and serve the record of appeal out of time
- 3.The applicant shall file and serve the record of appeal within twenty one (21) days of today's date
- 4.The respondent shall have the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court
- Kakamega ELC Case No. 10 of 2020 (OS)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
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 principles include the reason for the delay, the length of delay, the chances of appeal succeeding and lastly, the degree of prejudice that the respondent will sufier.
The period of delay, while lengthy, is not inordinate in the circumstances of this case. This Court formed the view that it will serve the interest of justice to allow the applicant to proceed with her appeal before this Court.
In the premises therefore, the application has merit and is hereby allowed. The applicant is granted leave to file and serve the record of appeal out of time.
The applicant shall file and serve the record of appeal within twenty one (21) days of today’s date. The respondent shall have the costs of the application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lukwa (Suing as the Legal Representative of the Estate of the Late Julius Muhambi Amayi (Deceased) v Imbuusi (Civil Appeal (Application) E155 of 2025) [2026] KECA 92 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/92/eng@2026-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.