Thomas v Jilani & another
The bottom line
#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 a Record of Appeal out of time
- 2.Whether the intended appeal is arguable
- 3.Whether the delay in filing the Record of Appeal has been satisfactorily explained
- 4.Whether the respondents would suffer undue prejudice if the extension is granted
Key legal issues
#Sufficiency of explanation for inordinate delay
The delay of over a year after certified proceedings were released to counsel, with no certificate of delay on the record, was inordinate and unexplained, defeating the application despite an arguable appeal
The court traced the chronology: notice of appeal filed December 2024, proceedings requested December 2024, released to former counsel June 2025, yet no record of appeal filed more than a year later. The record lacked a certificate of delay to ascertain the actual period. Arguability alone cannot overcome unexplained inordinate delay; the applicant must first surmount the delay hurdle.
Factors for extension of time under Rule 4
The court applies the Leo Sila Mutiso factors: length of delay, reason for delay, chances of appeal succeeding, and degree of prejudice, with the discretion unfettered and factors non-exhaustive
The court restated the established Rule 4 framework from Leo Sila Mutiso v Helen Wangari Mwangi, reinforced by Fakir Mohammed v Joseph Mugambi, and the Salat principles underscoring the public interest in finality of litigation. Prejudice was not shown by the respondents, but finality of litigation weighed against extension given the unexplained delay.
Legal principles established
#- Rule 4 confers an unfettered discretion on the Court to extend time for doing any act authorised or required by the Rules, on such terms as it thinks just
- An applicant for extension of time need only demonstrate an arguable appeal with likelihood of success; whether it will succeed is not for the single judge to judge
- There is no minimum or maximum period of delay; any delay must be satisfactorily explained, and a plausible explanation is the key that unlocks the Court's discretionary favour
Court orders
#- 1.The applicant's Notice of Motion dated 9th April 2026 seeking extension of time to file and serve a Record of Appeal is dismissed
- 2.Costs of the application awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court at Malindi
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretion to extend time)
Relief refused
#Extension of time to file and serve the Record of Appeal
The delay was inordinate and not sufficiently explained; no certificate of delay was on the record and no steps were taken for over a year after proceedings were released to counsel
Costs
Dismissed with costs to the 1st respondent
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.
I come to the inescapable conclusion that the applicant’s Notice of Motion dated 9th April 2026 fails and is hereby dismissed with costs to the 1st respondent.
I can only conclude that the delay is inordinate, and has not been sufficiently explained.
Whether or not it will succeed in whole or in part is not for me to judge.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas v Jilani & another", Case Analysis (2026). Civil Application E013 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1793/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.