SS v AP (Civil Appeal (Application) E697 of 2024) [2026] KECA 1115 (KLR)
The bottom line
#Kenya's Court of Appeal gave a litigant four extra months to file her appeal record, showing honest explanation of delay matters more than perfect procedure.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted extension of time to file and serve the record of appeal out of time
- 2.Whether the delay of about four months was inordinate and adequately explained
- 3.Whether the respondent would suffer prejudice if the extension is granted
Key legal issues
#Principles governing extension of time under Rule 4
The court considers the length of delay, reasons for delay, chances of appeal success and prejudice to the respondent.
The court restated the settled guidelines from Leo Sila Mutiso and Henry Mukora Mwangi: the decision is discretionary and the factors are delay length, reasons for delay, chances of the appeal succeeding and degree of prejudice to the respondent. The discretion is unfettered but must be exercised judicially, not on whim, sympathy or caprice.
Whether the delay of about four months was inordinate
The delay was not inordinate and the explanation - inadvertent failure to copy the bespeaking letter to opposing counsel despite diligent follow-up - was plausible.
Counsel filed and served the notice of appeal on time, applied for proceedings timeously and wrote several follow-up letters to the registry up to August 2024. The only lapse was inadvertent failure to copy the bespeaking letter to opposing counsel, which defeated reliance on the proviso to Rule 84. Given the matrimonial context affecting children, the delay could be countenanced.
Prejudice to the respondent and merit of the appeal
The respondent's expectation of finality did not outweigh the applicant's potential prejudice in being shut out; the merits question was left to the full court.
The court held the appeal could not be dismissed as an afterthought since the notice of appeal was filed and served on time. Given the matrimonial property dispute involving children, the applicant would be prejudiced if denied the right to appeal. The question of the appeal's chances of success was not necessary to determine and was left to the court hearing the substantive appeal.
Legal principles established
#- The discretion under Rule 4 of the Court of Appeal Rules is unfettered but must be exercised judicially, guided by the length of and reasons for delay, prejudice to the respondent, chances of appeal success and public importance.
Court orders
#- 1.Extension of time granted for filing and serving the record of appeal
- 2.Applicant to file and serve the record of appeal within 14 days from the date of the ruling, failing which the leave lapses and the record of appeal stands struck out
- 3.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi (Milimani)
- HCCC Suit No. 23 of 2019 (OS)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
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.
The discretion under Rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice.
It is my considered view, therefore, that the delay of about four months in the circumstances of this case can be countenanced.
The application is hereby allowed with no orders as to costs. The applicant to file and serve the record of appeal within 14 days from the date hereof, failing which the leave granted will automatically lapse and the record of appeal will stand struck out.
Issues in the judgment
#The judgment does not name the respondent in the text, referring only to 'the respondent'; the respondent's name is not ascertainable from the judgment.
The stated delivery date (12th June 2026) postdates the application date (16th December 2024) but the replying affidavit is dated 11th July 2025, which is consistent; no contradiction, but the delay between filing and ruling is notable.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SS v AP (Civil Appeal (Application) E697 of 2024) [2026] KECA 1115 (KLR)", Case Analysis (2026). Civil Application (Rule 4) arising from Milimani HCCC Suit No. 23 of 2019 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1115/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.