https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1217

Oginda v Nyamwange & 2 others (Civil Application E057 of 2026) [2026] KECA 1217 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KECA 1217 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E057 of 2026 MB Kairaria, JA June 26, 2026 Between Ann Kemunto Oginda Applicant and Caleb Isaboke Nyamwange 1st Respondent Abraham Birundu Nyangoto 2nd Respondent District Land Registrar 3rd Respondent (Being an application for leave to appeal out of time from the judgment of the Environment and Land Court at Nakuru( M. A Odeny J.) delivered on 19th December,2025 in ELC Case NO. 10 of 2024) Ruling 1.Before me for determination is the applicant’s application dated 20th April 2026 which expressed to be brought under Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules 2022. In the main the applicant seeks extension of time to file appeal against the judgement of M. A. Odeny J delivered on 19th December,2025 dismissing the applicant’s appeal[ Nakuru ELCA NO.10 of 2024]. The applicant also seeks stay of execution of the judgement, decree and all consequential orders made in Molo Magistrate’s Court ELRC No. E091 of 2019 pending the hearing and determination of the intended appeal which i observe is not within the jurisdiction of this court to grant under Rule 4 or at all. 2.I observe that this Court’s jurisdiction to stay execution as provided under Rule 5[2] [b] can only be exercised by a bench of this Court and not a single judge by dint of Rule 55[2][b] of the Court of Appeal Rules and even then the Court has no jurisdiction to stay execution of a judgment and decree of the magistrate’s court as sought by the applicant. Consequently I will not consider the prayer for stay of execution and my ruling will be restricted to a consideration of the prayer for extension of time to file the appeal. 3.The application is premised on the grounds set out on the face of the motion and supported by the affidavit of Anne Kemunto Oginda the Applicant sworn on 20th April 2026. The applicant states that her appeal before the ELC was unbeknown to her dismissed on 19th December, 2025 but her former advocate did not promptly inform her of the dismissal despite her best efforts and only became aware of the dismissal in April 2026 when she was served with a notice to vacate LR Nakuru/Molo/Kapsita/467 by which time the time prescribed by the Rules for filing the appeal had already lapsed. She adds that the delay of approximately three[3] months in filing the intended appeal was not deliberate but inadvertent and excusable; the intended appeal is arguable ,raises weighty issues of law and fact with high chances of success. 4.She contends that she stands to suffer irreparable loss ,including eviction from her only home, the Respondents will not suffer any prejudice that cannot be compensated by costs and submits that this Court has unfettered discretion to extend time under Rule 4 of the Court of Appeal Rules and it is in the interest of justice that the orders sought be granted. 5.The application is opposed by the Caleb Isaboke Nyamwange the 1st Respondent through his replying affidavit sworn on 12th May,2026 and written submissions dated 21st May 2026. The 1st Respondent contends that the applicant has not met the threshold for the grant of extension of time to file the appeal because; she has not satisfactorily explained the inordinate delay in filing the intended appeal, she brought the application for extension of time four months after the judgment was delivered without disclosing that she sought 21 days to vacate the suit premises on 10th March 2026 through he counsel and was granted 14 days to do so by the magistrate’s court. The 1st Respondent added that the applicant was evicted from the suit premises following the lapse of the 14 days , the 1st Respondent is now in possession of the suit premises and a grant of the extension sought will be prejudicial to him. 6.The first Respondent submitted that no plausible reasons for the delay have been given because the applicant has not shown that she lost contact with her advocate at any time and the advocate wrote to her letters dated 19th January 2026 informing her that her appeal was dismissed and another dated 11th March ,2026 advising her to vacate the suit premises within 14 days as ordered by the trial court on 10th March 2026. On the basis of those submissions the 1st Respondent prays that the application be dismissed with costs. 7.I have considered the application, the supporting affidavit the replying affidavit and the Respondent’s submissions in opposition to the application. I have not seen any submissions by the applicant at the time of writing this ruling. 8.The question for determination is whether or not I should exercise my discretion to extend time for filing the intended appeal against the judgement dated 19th December,2025. As the Applicant correctly points out that discretion is unfettered but because it is a judicial discretion I a m bound to exercise it judiciously. This Court has in a long line of decisions given guidance on the principles and considerations to be taken into account when considering an application such as the one now before me. In Leo Sila Mutiso Vs Rose Hellen Wangari Mwangi , Civil Application No. Nai 255 of 1997 [1999] 2 EA 23 this Court stated:“It is now well settled that the decision whether or not to extend 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.’’ 9.In this application the judgment sought to be appealed against was delivered on 19th December,2025. The applicant did not file the notice of appeal within 14 days after the delivery of that judgment as required by Rule 77 of the Rules or at all and neither did she request for typed proceedings within 30 days after the date of the decision. The application for extension of time was not made until 20th April 2026. She blames her former advocates for not promptly informing her that her appeal was dismissed despite her best efforts. She does not disclose what those efforts are. She also does not indicate when exactly she got to know about the judgment impugned judgement. I do not think that the Applicant is candid with the Court when she says that she got to know that her appeal was dismissed when she was served with the eviction notice in April 2026. There is evidence that her previous advocates informed her of the delivery of the judgment by letter dated 19th January 2026 and attended court on 10th March ,2026 and sought time for the applicant to vacate the suit premises and a day later informed her that she had been granted 14 days to do so in a letter dated 11th March,2026. 10.In light of this, I do not find the applicant’s explanation either plausible or satisfactory. Accordingly, I find no merits in the application dated 20th April 2026 and hereby dismiss it with costs to the Respondent. DATED AND DELIVERED AT NAKURU THIS 26TH DAY OF JUNE, 2026.MURUNGI B. KAIRARIA.............................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR