Thairu v Gatune (Civil Application E613 of 2025) [2026] KECA 483 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an attempt to revive a lapsed appeal, ruling that blaming your lawyer—without proof—is not enough to buy more time.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction where the prayer sought is leave, not extension of time
The Court cannot grant extension of time when the application as pleaded seeks leave to appeal under Rule 4.
Parties are bound by their pleadings and courts cannot grant unpleaded prayers, per Odinga v IEBC. Although the application invoked Rule 4 (extension of time), prayer 2 and the heading sought leave to file an appeal. The Court therefore held it lacked jurisdiction to grant extension of time on such an application and dismissed it.
Reason for the delay and mistakes of counsel
Blaming previous counsel without evidence of instructions is not a sufficient reason for extension of time.
A notice of appeal merely signals intention to appeal. The applicant had to prove she instructed counsel to institute the appeal and proactively pursued it. No evidence of instructions, of pursuit of the appeal, or of a request for typed proceedings within 30 days under the proviso to Rule 84(1) was tendered. Kiarie v Njuguna was distinguished as involving an explained 35-day delay.
Chances of the appeal succeeding
The intended appeal was unlikely to succeed given a prior valid finding on the deed of separation.
The Court noted that the judge below had found the deed of separation was previously declared valid by a court of competent jurisdiction in earlier proceedings between the same parties, which the applicant defended and did not appeal. Though definite findings were not required, this weighed against the application.
Legal principles established
#- A court cannot grant prayers or orders not sought by the parties; an application under Rule 4 that actually seeks leave to appeal rather than extension of time cannot be treated as an extension-of-time application.
- The Rule 4 extension-of-time factors are the length of and reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- A litigant relying on mistakes of counsel must prove that instructions were given and identify the mistake attributed to the advocate.
- Extension of time is a discretionary equitable remedy and the burden lies on the applicant to justify it; merely blaming an advocate is insufficient.
Court orders
#- 1.The Notice of Motion dated 21st October 2025 is dismissed
- 2.No orders as to costs
- On appeal from
- High Court of Kenya
- Nairobi High Court Civil Suit No. 51 of 2007 (O.S)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (invoked by the applicant for extension of time/leave)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thairu v Gatune (Civil Application E613 of 2025) [2026] KECA 483 (KLR)", Case Analysis (2026). Notice of Motion dated 21st October 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/483/eng@2026-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.