Kandie v Kapkoros alias Elizabeth Kimoi Jacob Kapkoros (Civil Application E037 of 2024) [2025] KECA 742 (KLR) (5 May 2025) (Ruling)

Key Facts

Issues

• The court considered whether the applicant, Philomena Kandie, demonstrated sufficient grounds for the Court of Appeal to extend the time for filing her notice of appeal and record of appeal against a 2023 High Court judgment. The applicant argued she was unaware of the judgment until August 2023, leading to a 29-day delay, while the respondent claimed the delay was inordinate and the application frivolous.
• The court examined the distinction between a struck-out application (on technicalities) and a dismissed one (finality), citing precedents like Swan Carriers Limited vs. Samuel Koskei Kibet [2010] eKLR. The applicant's first application was struck out, allowing a fresh request under Rule 4 of the Court of Appeal Rules 2022.
• The court evaluated if the applicant's explanation for the delay (unawareness of the judgment and inaction for three months) was reasonable and sufficient to justify condonation. The judge found the explanation plausible, citing principles from National Union of Mineworkers vs. Council for Mineral Technology [1998] ZALAC 22, and concluded the delay was excusable.

Holdings

• The court determined that the applicant's delay in filing the notice of appeal was excusable due to plausible reasons, including lack of awareness of the judgment's delivery until August 2023, and the absence of prejudice to the respondent.
• The Court of Appeal allowed the applicant's application for an extension of time to file and serve a notice of appeal and record of appeal, granting a 7-day window from the date of the ruling (5 May 2025).

Remedies

Legal Principles

• The court distinguished between a matter being 'struck out' and 'dismissed,' noting that a struck-out application does not preclude a fresh application. This principle was applied to allow the applicant to refile after their previous appeal was struck out.
• The court emphasized the importance of a satisfactory explanation for delay in filing appeals and the judicial discretion to condone such delays. The applicant's plausible explanation for the delay and the excusability of the 25-day gap were key factors in granting the extension.

Succession Regime

Precedent Name

• Ngonoi-Matengo Co-operative Marketing Union Ltd vs. Ali Mohamed Osman
• Swan Carriers Limited vs. Samuel Koskei Kibet
• Andrew Kiplangat Chemaringo vs Pasul Kipkorir Kibet
• Allan Robinson & two Others vs. Philip Gikaria Muthami
• Athuman Nusura Juma vs. Afwa Mohamed Ramadhan

Cited Statute

• Court of Appeal Rules 2022
• Appellate Jurisdiction Act

Judge Name

Passage Text

• "I find the reasons for the delay to be plausible, therefore, the delay was in the circumstances excusable... I accordingly allow the applicant's notice of motion application... to file and serve a notice of appeal and a record of appeal within 7 days from the date of this ruling."
• "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 approach is that the court has a discretion, to be exercised judicially upon a consideration of all facts and in essence it is a matter of fairness to both parties. Among the facts usually relevant are the degrees of lateness, the explanation therefore, the prospects of success and the importance of the case... Without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused."

Beneficiary Classes