Modugno & 4 others v Coco & 11 others
The bottom line
#Kenya's Court of Appeal refused to forgive a three-month delay in serving an appeal notice, blaming a clerk was not good enough.
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 applicants should be granted extension of time to serve the Notice of Appeal dated 18th July 2025, or have service on 5th/6th November 2025 deemed timely
- 2.Whether the intended appeal is arguable
- 3.Whether the delay in serving the Notice of Appeal has been satisfactorily explained
- 4.Whether the respondents would suffer undue prejudice if the application were allowed
Key legal issues
#Whether the delay in serving the Notice of Appeal was satisfactorily explained
The delay of over three months was substantial and unexplained; attributing it to an advocate's clerk's inadvertence without counsel assuming responsibility was not persuasive.
The Notice of Appeal was lodged within time under rule 77(2) but served more than three months outside the period prescribed by rule 78. The court held that service is counsel's responsibility, and a casual statement blaming a clerk's inadvertent failure, without counsel assuming responsibility or proffering credible explanation, cannot satisfy the Chemaringo standard of valid and clear reasons.
Whether the intended appeal is arguable
The intended appeal was found arguable on the low threshold, including the complaint that the trial judge made adverse findings against non-parties without a hearing.
Applying the low arguability threshold from the Sila Mutiso line of authorities, the court considered the numerous grounds in the Memorandum of Appeal dated 18th July 2025 and found the appeal arguable, notably the ground that the learned Judge made adverse findings against the applicants and a non-party without conducting a hearing on those allegations.
Whether the respondents would suffer prejudice if the extension were granted
Allowing the belated, reactionary Motion would prejudice the respondents by pre-empting their pending striking-out application.
The applicants filed their Motion five months after the 1st to 3rd respondents' application of 15th August 2025 to strike out the Notice of Appeal for non-compliance with rule 78. The court viewed the Motion as intended to steal a match and subvert that application, and held that granting it would effectively determine the fate of the respondents' yet-to-be-heard application.
Legal principles established
#- Counsel bears personal responsibility for ensuring due process in service of clients' documents; casually blaming a clerk does not constitute a satisfactory explanation for delay.
- A plausible and satisfactory explanation for delay is the key that unlocks the Court's flow of discretionary favour under rule 4.
Court orders
#- 1.The applicants' Notice of Motion dated 12th January 2026 seeking extension of time to serve the Notice of Appeal is dismissed
- 2.Costs of the application awarded to the 1st, 2nd and 3rd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Malindi
- Petition No. E006 of 2024
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules - discretion to extend time for doing any act authorised or required by the Rules
Relief refused
#Extension of time to serve the Notice of Appeal, and deeming of service effected on 5th November 2025 as served on time
The delay of over three months was substantial and not satisfactorily explained; blame on a clerk was unpersuasive; the Motion was reactionary, filed five months after the respondents' striking-out application, and would prejudice the yet-to-be-heard respondents' application
Costs
Application dismissed with costs to the 1st, 2nd and 3rd respondents
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.
Having carefully considered the applicants' Motion, the grounds on which it was founded, the affidavit in support, the oral submissions by learned counsel, the cited authorities and the law, I form the view that the application has no merit and is hereby dismissed with costs to the 1st, 2nd and 3rd respondents. It is so ordered.
Merely laying blame on a clerk by casually stating that he inadvertently failed to serve the notice is not by any means persuasive. Moreover, it is the responsibility of counsel to ensure due process in service of their clients.
… the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained.
In principle, the discretion is unfettered, and there is no limit to the number of factors the court would consider so long as they are relevant
Issues in the judgment
#Delivery venue inconsistency: cause title says Malindi, delivery clause says Mombasa
Date of service discrepancy between parties' pleadings and the court's finding
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Modugno & 4 others v Coco & 11 others", Case Analysis (2026). Civil Application E002 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1766/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.