Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment

Mibei & another v Mibei & another (Civil Application E203 of 2025) [2026] KECA 567 (KLR)

Court of Appeal of Kenya
16 March 2026
1,232 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that applications for leave to appeal in civil matters must be filed within 14 days, with no extension possible under Rule 41(1)(b).

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nakuru, delivered by J. Mativo, JA, on 16th March 2026, on the applicants' notice of motion dated 8th December 2025 seeking extension of time to seek leave to appeal against a ruling of Hon. Justice Julius K. Ng'arng'ar delivered on 23rd October 2025 in Bomet High Court Family Probate & Administration Case E047 of 2023. The applicants explained that their advocates inadvertently forgot to seek leave to appeal after filing a notice of appeal, and that the delay was only 28 days. The 1st respondent opposed, arguing that the application was filed without leave, that leave cannot be obtained retrospectively, that the delay was unexplained, and that the appeal was not arguable. The court analysed Rule 41 of the Court of Appeal Rules, 2022, holding that Rule 41(1)(b), which requires an application for leave to appeal to the Court in a civil matter to be made within fourteen days, is couched in mandatory terms. It contrasted the permissive 'may' in Rule 41(1)(a) with the mandatory 'shall' in Rule 41(1)(b), and observed that while Rule 41(3) opens a window for out-of-time certification applications, no such window exists for leave applications, showing the drafters' deliberate choice. Having found that the applicants never applied for leave before the trial court and did not move the Court within the mandatory 14 days, the court held the application was dead on arrival and dismissed it. However, mindful that this is a family dispute, it made no order as to costs.

Questions the Court framed

#

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

  1. 1.Whether the applicants should be granted extension of time to seek leave to appeal against the ruling of 23rd October 2025
  2. 2.Whether an application for leave to appeal in a civil matter must be filed within 14 days as required by Rule 41 of the Court of Appeal Rules, 2022
  3. 3.Whether Rule 41(1)(b) is mandatory or directory

Key legal issues

#
01

Whether Rule 41(1)(b) of the Court of Appeal Rules, 2022 is mandatory

Holding

It is mandatory. The use of 'shall' denotes obligation, and unlike Rule 41(2) and (3) on certification of general public importance, the drafters opened no window for extension of time in respect of leave applications under sub-rule (1)(b).

Reasoning

The court applied the ordinary rule of statutory construction that 'shall' is a word of command. It contrasted Rule 41(1)(a), which uses the permissive 'may', with Rule 41(1)(b), which uses 'shall'. It also noted that Rule 41(3) deliberately provides an out-of-time mechanism only for certification applications, showing the drafters consciously omitted one for leave applications under sub-rule (1)(b), despite being aware of Rule 4.

p. 3
02

Effect of failure to seek leave within the prescribed period

Holding

The application for extension of time was incompetent and dismissed; an appeal or application filed without the mandated leave and outside the 14-day period cannot be rescued by extension of time in these circumstances.

Reasoning

The applicants neither sought leave from the trial court nor moved the Court of Appeal within 14 days. Their advocates' inadvertence and the 28-day delay did not satisfy the requirements for extension. The application was therefore 'dead on arrival' and had to be dismissed, though costs were spared given the family nature of the dispute.

p. 3

Legal principles established

#
  • Rule 41(1)(b) of the Court of Appeal Rules, 2022 is mandatory: an application for leave to appeal to the Court of Appeal in a civil matter must be made within 14 days of the decision, and no window for extension of time is open in respect of that sub-rule
  • The word 'shall' in a statutory provision imports a command and is mandatory, while 'may' is permissive or directory

Court orders

#
  1. 1.The application dated 8th December 2025 is dismissed
  2. 2.No order as to costs, bearing in mind that this is a family dispute

The bench

#

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

majority

Wrote the judgment

On appeal from
High Court of Kenya (Bomet)
BOMET HCFP&A E047 of 2023
Jurisdiction invoked
Rule 4 and Rule 41 of the Court of Appeal Rules, 2022 (extension of time and leave to appeal in civil matters)

Relief refused

#

Extension of time to seek leave to appeal and deemed filing of the notice of appeal

The applicants never applied for leave before the trial court and did not move the Court within the mandatory 14 days under Rule 41(1)(b); the application was therefore incompetent from the outset

p. 3

Costs

No order as to costs, each party to bear their own costs implicitly, bearing in mind that this is a family dispute ('I dismiss it but make no order as to costs bearing in mind that this is a family dispute.')

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.

Therefore, the rule means what it says. The application must be filed within 14 days.
p. 3Mandatory 14-day period for leave to appeal under Rule 41(1)(b)
Ordinarily the words ‘shall’ and ‘must’ are mandatory and the word ‘may’ is directory.
p. 3Statutory interpretation of 'shall' versus 'may'
By the time the drafters were writing sub rule (3), they were not writing on a clean slate. The ink in sub rule (1) had not dried, therefore, they were aware of the cognate provisions of sub rule 1(b), yet they did not open such a window.
p. 3Drafters' deliberate omission of an extension window for leave applications
Accordingly, this application was dead on arrival. I dismiss it but make no order as to costs bearing in mind that this is a family dispute.
p. 3Final orders - dismissal and no order as to costs

Issues in the judgment

#
minor

The respondent's counsel cited the Salat case with two different renderings of the name in the judgment ('Nicholas K. Arap Salat' in paragraph 3 and 'Nicholas Kiptoo Arap SAlat' in paragraph 4); both are recorded in casesCited as written.

minor

The judgment does not state the appeal number or the names of the parties in the heading; only the lower-court case number (BOMET HCFP&A E047 of 2023) is identifiable.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mibei & another v Mibei & another (Civil Application E203 of 2025) [2026] KECA 567 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/567/eng@2026-03-16

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