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Court of AppealAllowedNot stated in the judgment

Mahad v Achola & another (Suing as the legal representative of the Estate of Jechonia Oliver Achola Ndinya); Otachi & 2 others (Interested Parties) (Civil Application 762 of 2025) [2026] KECA 531 (KLR)

Court of Appeal of Kenya
13 March 2026
1,786 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed a 17-day late appeal notice, ruling that illness abroad is a valid excuse and fresh lawyers can file it.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by Okong'o, JA, delivered on 13th March 2026, on a Notice of Motion dated 18th December 2025 under Rule 4 of the Court of Appeal Rules seeking extension of time to file a Notice of Appeal against a judgment of the superior court delivered on 17th November 2025. The applicant explained the delay by illness and travel to Ethiopia for treatment, during which he was unable to communicate with his Kenyan advocates, and annexed travel and treatment records. The respondents opposed, arguing the delay, that the applicant's absence was not proved by a stamped passport, and that the firm of Osundwa & Company Advocates, which did not act below, was not properly on record and that the resulting Notice of Appeal was defective. The court restated the settled principles from Salat, Fakir Mohammed, Mwangi, Leo Sila Mutiso and Chemaringo, holding the Rule 4 discretion unfettered but judicious. It found the 17-day delay not inordinate, accepted the applicant's explanation as reasonable, found no prejudice to the respondents, and rejected the objection to the new advocates, holding that an appellant may freely engage fresh counsel on appeal and that travel abroad need not be proved solely by passport. The application was allowed and the applicant given 21 days to file the Notice of Appeal. No costs order is recorded.

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 given a reasonable explanation for the delay of 17 days in filing the Notice of Appeal under Rule 4
  2. 2.Whether the firm of Osundwa & Company Advocates, which did not act for the applicant in the superior court, is properly on record to bring the application and file the Notice of Appeal
  3. 3.Whether the applicant was out of the country and unable to communicate with his advocates when judgment was delivered, and how such travel may be proved

Key legal issues

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01

Discretion to extend time under Rule 4

Holding

The Rule 4 discretion is unfettered but must be exercised judiciously, applying the Salat factors: reason for delay, absence of prejudice, and promptness of the application.

Reasoning

The court restated the Supreme Court's Salat principles and earlier Court of Appeal authorities. It found the 17-day delay not inordinate, accepted the applicant's explanation of illness and treatment in Ethiopia, found the application brought without unreasonable delay, and found no evidence of prejudice to the respondents. On balance the discretion was exercised in the applicant's favour.

p. 3
02

Whether new advocates can come on record for an appeal without leave

Holding

There is no procedural bar to a party engaging, for the appeal, advocates who did not act for him in the superior court; the respondents' objection failed.

Reasoning

The respondents argued Osundwa & Company Advocates never acted for the applicant below, never sought leave to come on record, and that the resulting Notice of Appeal was defective. The court rejected this as a technical objection, holding nothing prevents an appellant from instructing fresh counsel on appeal.

p. 4
03

Proof of absence from the country and ability to communicate with advocates

Holding

Travel out of Kenya need not be proved by a stamped passport; the applicant's travel and treatment records satisfied the court, and illness abroad reasonably explains inability to communicate with advocates.

Reasoning

The respondents demanded a stamped passport and argued modern communication made the applicant's claim implausible. The court accepted the annexed travel and treatment evidence, held that a sick person's priority is health rather than a pending court case, and disbelieved nothing about the applicant's account.

p. 4

Legal principles established

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  • A party wishing to appeal may engage a firm of advocates who did not act for him in the superior court to represent him on appeal; there is no procedural hindrance to such an advocate filing a Notice of Appeal out of time.
  • Departure from Kenya and re-entry in connection with an extension-of-time application is not proved exclusively by a stamped passport; other credible evidence suffices.
  • A delay of 17 days past the Rule 77 deadline is not inordinate, and illness while seeking treatment abroad is a reasonable explanation for failure to file a Notice of Appeal in time.

Court orders

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  1. 1.The application is allowed
  2. 2.The applicant shall file the Notice of Appeal within 21 days from the date of the ruling

The bench

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

majority

Wrote the judgment

On appeal from
Superior court (not further identified)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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.

Rule 4 of the Rules gives this court unfettered discretion to grant an extension of time. That discretion must, however, be exercised judiciously.
p. 3Nature of the Rule 4 discretion
I can see no hindrance, procedural or otherwise, to a party who wishes to appeal against a decision of a superior court, engaging a firm of advocates who never acted for him in that court to represent him in the appeal.
p. 4Fresh advocates on record for an appeal
I disagree with the respondents’ contention that departure from Kenya to a neighbouring country and re-entry can only be proved by a passport.
p. 4Standard of proof of travel abroad
The same is allowed. The applicant shall file the Notice of Appeal within 21 days from the date hereof.
p. 4Final orders

Issues in the judgment

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minor

The judgment does not state the names of the parties, the case number, or any citation for this ruling; it refers only to 'the applicant' and 'the respondents'.

minor

The judgment refers to a Notice of Appeal having been filed by Osundwa & Company Advocates which the respondents contend is fatally defective, but the ruling does not state whether that Notice of Appeal was in fact filed or adjudicate on its validity.

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, "Mahad v Achola & another (Suing as the legal representative of the Estate of Jechonia Oliver Achola Ndinya); Otachi & 2 others (Interested Parties) (Civil Application 762 of 2025) [2026] KECA 531 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/531/eng@2026-03-13

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