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Court of AppealDismissedNairobi Civil Application (as per the Notice of Motion dated 6th November, 2025)

FHJA (Suing as mother and next friend of the minor) v ASAB (Civil Application E661 of 2025) [2026] KECA 484 (KLR)

Court of Appeal of Kenya
6 March 2026
2,071 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to extend time to file an appeal, ruling that blaming your lawyer without evidence of follow-up is not enough.

What this practically means

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Executive summary

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By a Notice of Motion dated 6th November 2025, the applicant sought extension of time and leave to file a notice of appeal and memorandum of appeal out of time against a ruling of 6th October 2025 in Nairobi High Court Family Division Civil Appeal No. E095 of 2025, which had dismissed her application for stay of execution of a lower court custody order. The application was heard by Okello, JA, sitting as a single judge under Rule 4 of the Court of Appeal Rules, by way of written submissions. The respondent opposed, arguing duplication of a similar application in Civil Appeal No. E690 of 2025, abuse of process, and unexplained delay. Applying the settled principles from Mwangi vs Kenya Airways and Leo Sila Mutiso, the Court found the 16-day delay inordinate and unexplained. The applicant's assertion that previous advocates (Ashioya & Co. Advocates) caused the delay was rejected for want of evidence, noting the advocate remained on record in a related matter. Although the Court accepted the intended appeal - concerning the best interests of the child, an unrecorded voire dire examination, and the minor's wishes - was arguable, it held that with the minor already in the respondent's custody and judgment pending in the High Court appeal, the status quo should be maintained. The application was dismissed with each party bearing their own costs, with liberty to approach the Court of Appeal after the High Court appeal is determined.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has met the threshold for enlargement of time to file the notice of appeal and memorandum of appeal out of time under Rule 4 of the Court of Appeal Rules, considering the length of and reason for the delay, the arguability of the intended appeal, and the degree of prejudice to the respondent

Key legal issues

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01

Length of the delay in filing the notice of appeal

Holding

The delay of 16 days beyond the 14-day statutory period was inordinate and, absent satisfactory explanation, undeserving of the Court's discretion to extend time

Reasoning

The ruling was delivered on 6th October 2025 and the notice of appeal was due by 20th October 2025. It was filed on 6th November 2025, 16 days late. The Court noted that length of delay is assessed case by case, and that where there is delay the Court must interrogate whether it is justifiable and excusable in the circumstances of the case. Finding no satisfactory explanation, the judge held the delay inordinate.

p. 3
02

Reason for the delay - alleged mistake of previous advocates

Holding

The claim that delay was caused by the applicant's previous advocates was unsubstantiated; the said advocates remained on record in a related matter and no follow-up correspondence was produced

Reasoning

The applicant blamed Ashioya & Co. Advocates for failing to lodge the notice of appeal. The Court found no evidence substantiating this: the advocate was still on record for the applicant in a related High Court matter, and no correspondence evidencing follow-up efforts was exhibited. Citing Gaciani, the Court held that a litigant must show due diligence and cannot simply blame counsel for all transgressions.

p. 3
03

Arguability of the intended appeal and prejudice

Holding

The appeal was arguable, but because the minor was already in the respondent's custody and judgment was pending in the High Court, the balance favoured refusing extension and maintaining the status quo

Reasoning

The Court accepted that an arguable point need not succeed but merely deserve consideration, and found the intended appeal arguable on the grounds raised, including the best interests of the child and the unrecorded voire dire examination. However, weighing the custody situation and the pending High Court appeal, the judge preferred to let that appeal run its course, leaving the applicant free to approach the Court of Appeal thereafter if dissatisfied.

p. 4

Legal principles established

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  • Rule 4 gives a single judge an unfettered discretion which must be exercised judicially, and the judge may consider any relevant factor outside the settled principles, which are not exhaustive
  • The settled factors for extension of time are the length of delay, the reason for delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent
  • While mistakes of an advocate should not be visited on a litigant, the litigant must adduce cogent and credible evidence of due diligence and follow-up with counsel; it is not enough simply to blame advocates
  • Timelines for filing appeals are jurisdictional; time is a crucial component in the dispensation of justice

Court orders

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  1. 1.The Notice of Motion dated 10th November, 2025 is dismissed
  2. 2.Each party shall bear their own costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya, Family Division, Nairobi
Civil Appeal No. E095 of 2025
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single judge jurisdiction to extend time)

Relief refused

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Extension of time and leave to file the notice of appeal and memorandum of appeal out of time against the ruling of 6th October 2025

The delay of 16 days was inordinate and unexplained; the blame attributed to previous counsel was unsubstantiated; the minor is already in the respondent's custody and a pending appeal in the High Court awaits judgment

p. 3

Costs

Each party shall bear their own costs of the application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.
p. 2Settled principles for extension of time under Rule 4
It is not enough for a party to simply blame the advocates on record for all manner of transgressions. Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not.
p. 4Litigant's responsibility to follow up despite representation by counsel
The Notice of Motion dated 10th November, 2025 is dismissed;
p. 4Final orders - dismissal of the application
Each party shall bear their own costs of the application.
p. 4Final orders - costs

Issues in the judgment

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minor

The motion is variously dated 6th November 2025 (opening paragraphs) and 10th November 2025 (disposition paragraphs), creating internal inconsistency about which application was dismissed

minor

The judgment states the delay as 16 days but the respondent deposed the application was filed twenty-five days out of the statutory timeline

minor

The case number of the ruling appealed from is given as 'Nairobi High Court Family Division Civil Appeal No. E095 of 2025' but paragraph 11 refers to 'Nairobi NAI No. E661 of 2025', an inconsistency in the lower court case number

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "FHJA (Suing as mother and next friend of the minor) v ASAB (Civil Application E661 of 2025) [2026] KECA 484 (KLR)", Case Analysis (2026). Nairobi Civil Application (as per the Notice of Motion dated 6th November, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/484/eng@2026-03-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.