EXTENSION OF TIME UNDER RULE 5(2)(B) OF THE COURT OF APPEAL RULES

1. Introduction

The Court of Appeal in Kenya plays a crucial role in safeguarding the right to appeal. However, strict procedural timelines govern the filing of appeals and related applications. Failure to meet these timelines may result in dismissal unless the court grants an extension of time.

Rule 4 of the Rules expressly governs applications for extension of time. It provides that:

“The Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act…”

Although Rule 5(2)(b) deals with interim relief, an application under it may be coupled with or necessitate an extension of time under Rule 4 when procedural deadlines have lapsed.

Rule 4 of the Court of Appeal Rules, 2022 gives this Court the discretion to extend time prescribed by the Rules or order of Court. Although unfettered, this discretion is guided by well settled principles. These are:

a) the length of the delay; b) the reasons for the delay; c) (possibly) the chances of the appeal succeeding if the application is granted; and the degree of prejudice to the respondent if the application is granted. See Leo Sila Mutiso v Rose Hellen Wangari Mwangi – Civil Application No. Nai 251 of 1997.

These well settled principles were rehashed in Fakir Mohamed v Joseph Mugambi & 2 others [2005] eKLR) in which the court considered more possible principles including: -

The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance-are all relevant but not exhaustive factors...

a) The length of the delay;

One of the common cases relied on in addressing the length of time is Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet [2018] eKLR, in which this Court stated that :

“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.”

The applicant must explain the duration between the lapse of the prescribed time and the filing of the application. Short, justifiable delays are more likely to be condoned.

b) The Reason for the delay

The explanation must be plausible and supported by evidence. Acceptable reasons may include inadvertent procedural error, delays in obtaining certified proceedings, or unforeseen circumstances such as illness.

In Bains Construction Co. Ltd. –v- John Mzare Ogowe [2011] eKLR the Court observed:

“It is to some extent true to say mistakes of counsel as is the present case should not be visited upon a party but it is equally true when Counsel as agent is vested with authority to perform some duties and does not perform it, surely such principal should bear the consequences”.

**In Habo Agencies Limited vs Wilfred Odhiambo Musingo [2015] eKLR, the Court stated as follows: **

“It is not enough for a party in litigation to simply blame the advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases, even when they are represented by counsel.”

c) Chances of the Appeal Succeeding

The applicant must show that the intended appeal is arguable and not frivolous. An arguable appeal does not mean the appeal will necessarily succeed, only that it raises legitimate legal issues.

As regards the success of the appeal, this Court in Athuman Nusura Juma v Afwa Mohamed Ramadhan, CA No. 227 of 2015 stated as follows:

“This Court has been careful to ensure that whether the intended appeal has merits or not is not an issue determined with finality by a single judge. That is why in virtually all its decisions on the considerations upon which discretion to extend time is exercised, the Court has prefixed the consideration whether the intended appeal has chances of success with the word “possibly.”

The court may thus make a prima facie assessment of whether the intended appeal is arguable and raises legitimate issues, without delving into merits.

This ensures judicial resources are not wasted on hopeless appeals.

d) Prejudice to the Respondent

a. The court considers whether granting extension will unfairly prejudice the respondent. Extension should not cause substantial prejudice to the opposing party, such as prolonged uncertainty or financial detriment.

b. the Court will go ahead to look into whether respondent was served with a record of appeal or not and for what period from the date of the impugned judgment. If the delay is too long, in all fairness, the Court is likely to find that the respondent stands to suffer prejudice if the application is allowed as the delay is inordinate and is not well explained

c. The court balances the right to be heard against the right to finality in litigation.

e) Effect of delay on Public Administration

In matters involving public bodies, extended litigation can hinder administration, stall projects, or disrupt governance. The court considers whether granting extension will unduly burden public functions.

f) Importance of compliance with time limits

The court, in considering each case, take into account strict adherence to timelines promotes order, certainty, and fairness in the justice system. Granting extensions too freely undermines this principle.

g) Resources of the parties

The court may consider whether a party’s financial or logistical constraints contributed to delay. This factor reflects equity and recognition of unequal litigation capacity.

h) Public importance of the matter

If the intended appeal raises novel, precedent-setting, or public interest issues, the court may be more inclined to grant extension, even after considerable delay.

Conclusion

The Fakir Mohamed case remains a landmark in shaping the jurisprudence on extension of time in the Court of Appeal. Its expanded list of considerations ensures a context-sensitive, justice-oriented approach, balancing procedural order with the constitutional right to be heard. For practitioners, it underscores the importance of strategic, evidence-backed applications and responsiveness to broader policy concerns in appellate litigation.

Compiled and edited by Robinson Nthuli Munyalo FCIArb