Maina & another (Suing as the personal representatives of he Estate of Tabnyobii C Maina - Deceased) v Keino & 2 others (Civil Application E037 of 2026) [2026] KECA 871 (KLR)

Rule 4 of the Court of Appeal Rules is silent on the factors governing extension of time, so courts have devised principles to achieve a just decision in each case. The Leo Sila Mutiso test - length of delay, reason for delay, arguability of the appeal and prejudice to the respondent - was restated and endorsed by the Supreme Court in Salat, which added that extension is an equitable remedy available only to a deserving party and that the applicant bears the burden of laying a basis.

The applicants blamed their former advocates for failing to inform them of the striking out of the appeal and cited their committal to civil jail from 16th January 2026. The court held that litigants must actively pursue their cases and that counsel's inaction cannot excuse indolence; the applicants also did not explain the gap before their arrest. Although the delay was only about four months, the absence of a plausible explanation, coupled with the prejudice to the 1st respondent in a 7-year-old matter, defeated the application.

The applicants asserted high chances of success but did not annex a draft memorandum of appeal. The judge declined to assess arguability, holding it would be improper for a Single Judge to determine the prospects of the intended appeal at the interlocutory stage, and confined the determination to the delay, its explanation, and prejudice.

The court weighed the age of the underlying dispute - filed in 2019, seven years before the ruling - and concluded that the inordinate delay would prejudice the 1st respondent if the extension were granted. This tipped the discretionary balance against the applicants, whose explanation for the delay was already found wanting.