Applicant v Respondent (Extension of Time to Appeal out of Time)
The bottom line
#Choosing to ask for a review of a Kenyan judgment means giving up your right to appeal it — and courts won't extend time afterwards.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to extend time where the judgment was previously subjected to review
The court lacks jurisdiction to extend time to appeal against a judgment previously challenged by review; review and appeal are mutually exclusive remedies.
The applicant filed suit, which was dismissed on 5th March 2024. The applicant then sought review under Order 45 Rule 1, dismissed on 6th May 2025. Having elected review and exhausted it, the applicant forfeited the right to appeal the same judgment. Granting leave would be antithetical to the rule of law, per Order 45 Rule 1 and Court of Appeal authority.
Whether the application was mounted with unreasonable and inordinate delay
Yes - the 14-month delay between judgment and application was grossly unreasonable, and the only explanation offered (the dismissed review) was not credible.
Judgment was delivered on 5th March 2024; an appeal should have been filed within 30 days under Section 79 of the Civil Procedure Act. The application came after more than 14 months. The applicant must isolate and account for delay; the only reason given was the dismissed review application, amounting to seeking a second bite at the cherry.
Whether the application constitutes abuse of the due process of the court
Yes - the application amounts to abuse of court process, riding on the magistrate's obiter observation that review grounds could only be canvassed on appeal.
The trial magistrate's observation that issues raised in review could only be canvassed by appeal was obiter. The applicant misused it to seek a second avenue after electing review. Citing the Supreme Court in Rutongot Farm Ltd, such conduct manoeuvres the court's jurisdiction incompatibly with the goals of justice and cannot be sanctioned.
Legal principles established
#- A party cannot pursue both an appeal and a review in respect of the same judgment; electing review extinguishes the right of appeal.
- No leave/extension of time can be granted for an appeal against a judgment where review of the same judgment has already been sought and dismissed.
- Delay of 14 months in seeking extension of time is grossly unreasonable and inordinate.
- An explanation for delay must be credible, plausible and cogent; an excuse bordering on abuse of court process is insufficient.
Court orders
#- 1.The application dated 15th May 2025 be and is hereby dismissed.
- 2.No orders as to costs.
- On appeal from
- Subordinate court (Meru)
- Not stated
- Jurisdiction invoked
- Inherent jurisdiction to extend time to file an appeal out of time (Section 79 Civil Procedure Act; Order 50 Civil Procedure Rules implied; application Notice of Motion dated 15th May 2025)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Applicant v Respondent (Extension of Time to Appeal out of Time)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4738/eng@2025-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.