https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1115

SS v AP (Civil Appeal (Application) E697 of 2024) [2026] KECA 1115 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1115 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E697 of 2024 W Karanja, JA June 12, 2026 Between SS Applicant and AP Respondent (Being an application for extension of time file the Record of Appeal out of time against the decision of the High Court of Kenya sitting at Nairobi (S. N. Riechi, J.) dated 22nd March 2024 in HCCC NO. 23 OF 2019) Ruling 1.Sukeshi Shah, the applicant herein, moved this Court primarily under Rule 4 of the Court of Appeal Rules, by a notice of motion dated 16th of December 2024 in which she seeks extension of time within which to file and serve the record of appeal in respect of the judgment and decree of the High Court sitting at Nairobi, delivered on 25thJanuary 2024 and corrected on 22nd March 2024 in Milimani HCCC suit No.23 of 2019(OS). 2.The application is predicated on the grounds on its face and supported by the affidavit of the applicant sworn on even date. According to the applicant she was aggrieved by the impugned judgment and she filed a notice of appeal within the prescribed time of 14 days and served the same on counsel for the respondent. Her counsel then on record, also wrote a letter dated 9th February 2024 to Deputy Registrar of the court requesting to be supplied with certified copies of the proceedings and judgment for purposes of preparing the record of appeal. 3.Unfortunately, the applicant’s counsel forgot to serve the letter on counsel for the respondent within the 30 days mandated by the Court of Appeal Rules. This, therefore, meant that the record of appeal should have been filed and served within 60 days from the date of delivery of the impugned judgment. The applicant deposes that after getting a copy of the judgment, they discovered that it bore the wrong date and also had other typographical errors which needed to be corrected. The judgment was, therefore, returned to the registry for the said corrections to be effected. 4.The typed proceedings were collected from the registry on 22nd March 2024 and a certified decree was subsequently issued on 5th April 2024. By this time, the 60 days required for the filing of the record of appeal had expired. 5.It was only then that it was discovered that the letter bespeaking the proceedings had not been copied to the respondent’s counsel and the applicant could not, therefore, rely on the proviso to Rule 84 of the Court of Appeal Rules, which allowed for time taken to type the proceedings to be omitted in computing the 60 days within which the record of appeal was to be filed. This is why the applicant has now moved the Court for extension of time within which to file and serve the said record of appeal. 6.The application is opposed by the respondent through a replying affidavit sworn on 11th July 2025. The respondent deposes that the letter bespeaking proceedings was not copied to his counsel, a fact that is admitted by the applicant, and goes on to say that the delay involved was inordinate and it has prejudiced him, and that no sufficient reasons have been advanced to warrant the granting of leave as requested by the applicant. According to the respondent, he had a legitimate expectation of finality of litigation and it is not fair to him that the matter be delayed on account of the applicant’s counsel’s negligence and failure to serve the letter asking for proceedings. The respondent maintains that there is no evidence proffered by the applicant to show that she will suffer any loss or damage if leave is not granted. 7.Both parties filed submissions in support of their opposing positions with both sides citing decided cases which articulate the principles that should guide the court in applications of this nature. 8.I have considered the application, the rival affidavits along with the submissions by both counsel. Under Rule 4 of the Court of Appeal Rules:-“The court may, on such terms as may be just, by order extend the time limited by these Rules, or by any decision of the Court or of a Superior Court, for doing any act authorized or required by these Rules, whether before or after doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.” 9.The discretion under Rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance. In Henry Mukora Mwangi -vs- Charles Gichina Mwangi, Civil Application No. Nai. 26 of 2004, this Court held:-“It has been stated time and again that in an application under rule 4 of the Rules the learned single Judge is called upon to exercise his discretion which discretion is unfettered. It may be appropriate to re-emphasize this principle by referring to the decision in Mwangi -vs- Kenya Airways Ltd [2003] KLR 486 in which this Court stated:-“Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance, in Leo Sila Mutiso - vs- Rose Hellen Wangari Mwangi - Civil Application No. Nai. 255 of 1997 (unreported), the Court expressed itself thus:-“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.”” 10.Does this application meet the above threshold? I note that the Notice of Appeal was filed and served on time and the appeal cannot, therefore, be said to be an afterthought. 11.I note that the applicant’s counsel on record timeously applied for the proceedings and judgment to enable him prepare the record of appeal. He also did follow up with the court registry for the supply of the proceedings and judgment appealed against, as was evident from the letters to that effect which are annexed to the applicant’s affidavit. The last letter indicated that the applicant’s counsel was pursuing the matter even as at 15th August 2024.According to the applicant, after receiving the proceedings she instructed another counsel to advise her on the way forward and it was only then that they realized that the letter bespeaking proceedings had not been copied to the opposing counsel. 12.The application in question was filed in December 2024, which was only a few months after the proceedings and certified copy of the judgment were received from the court registry. It can, therefore, be said that the delay involved was for about four months. Can this delay be said to be inordinate given the circumstances that the applicant has laid out, which are not denied? 13.There is on record evidence that counsel for the applicant wrote to the court on several occasions requesting for the proceedings and followed up with several letters. It cannot, therefore, be said that after requesting for the proceedings, counsel for the applicant went to sleep. The only mistake which has been explained as inadvertence, is that Counsel did not copy the letter bespeaking proceedings to opposing Counsel. 14.It is my considered view, therefore, that the delay of about four months in the circumstances of this case can be countenanced. I do not find it inordinate; and secondly, I am persuaded that the explanation given for the delay is plausible. I also note and appreciate that this is a matrimonial dispute which involves, not just the parties herein, but also children born out of the now broken marriage, who are affected by the judgment. I would not say that the appeal is frivolous, nor is it a waste of court’s time. Issues of division of matrimonial properties are intricate and can never be determined with scientific precision and there are bound to be appeals flowing out of such decisions. The applicant will, in my view, be prejudiced if she is shut out from appealing against what she perceives to be an unjust or unfair distribution of matrimonial property. 15.Having so found, it is not necessary for me to delve into the question of whether the appeal in question has any chances of success. That will, definitely, be in the realm of the court that will be charged with hearing the substantive appeal and determining it on merit. 16.From the foregoing, it is clear to me that this application has merit. It is for allowing so that the parties can move this Court on the substantive appeal for their rights to be determined on merit and, hopefully, for the matter to be settled not just for their own good, but for that of the children arising from the marriage. 17.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. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026.W. KARANJA.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar