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Case Brief · caselaw.co.ke
High CourtAllowedNot indicated in the judgment as provided· Not indicated

Applicant v Respondents (Extension of Time to File Memorandum of Appeal)

High Court of Kenya
15 January 2025
1,909 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's High Court allowed a late appeal because the applicant proved the delay was caused by waiting for court proceedings, not negligence.

What this practically means

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Executive summary

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This is a ruling of the High Court at Nyeri (Kizito Magare, J) delivered on 15 January 2025 on two applications: the Applicant's application dated 27/2/2024 and a supplementary application dated 8/7/2024, seeking extension of time to file a Memorandum of Appeal against a subordinate court judgment dismissing the Applicant's protest on 28/11/2018. The Applicant explained that he applied for certified proceedings on 13/12/2018, the proceedings were supplied on 25/3/2019, and a certificate of delay was issued on 9/4/2019, after the appeal period had expired; the application was filed on 3/5/2019. He further explained that the 1st Respondent died on 24/2/2020 and the 2nd and 3rd Respondents obtained letters of administration ad litem. The Respondent opposed, citing laches and prejudice. The court applied the established discretionary criteria from Salat, Seventh Day Adventist Church, Dilpack and Savatia: length of delay, reason for delay, animus of the applicant and prejudice to the Respondent. It held that the certificate of delay discounted 105 days, that the Applicant timely requested proceedings within the appeal period and filed the application only 14 days after the certificate, and that the reasons for delay were plausible and the delay not inordinate. The court allowed the application, granting leave to file the Memorandum of Appeal within 14 days, with each party bearing its own costs.

Key legal issues

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01

Whether the delay in filing the Memorandum of Appeal was inordinate and satisfactorily explained

Holding

Yes - the delay was explained and not inordinate; the application was filed 14 days after issuance of the certificate of delay, and proceedings had been timely requested within the appeal period.

Reasoning

The court considered the Salat and Seventh Day Adventist criteria: length of delay, reasons, animus and prejudice. A certificate of delay dated 9/4/2019 discounted 105 days. The Applicant applied for certified proceedings on 13/12/2018 within the appeal window and filed the application on 3/5/2019, only 14 days after the certificate. The reasons were plausible and the delay not inordinate.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the court's discretion, requiring the applicant to lay a basis and explain the delay to the court's satisfaction.
  • The delay in filing an appeal, however short or long, must be specifically explained; without a valid reason the court has no jurisdiction to extend time.
  • Factors relevant to extension of time include the length of delay, the reason for delay, the animus of the applicant, and prejudice to the Respondent.

Court orders

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  1. 1.Leave granted to the Applicant to file the Memorandum of Appeal
  2. 2.The Appeal shall be filed within 14 days from the date of the ruling
  3. 3.Each party shall bear own costs
On appeal from
Subordinate court (magistrates' court)
Jurisdiction invoked
Section 79G of the Civil Procedure Act (inherent discretion to admit appeal out of time)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Applicant v Respondents (Extension of Time to File Memorandum of Appeal)", Case Analysis (2025). Not indicated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.