https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1597

Mwololo (Suing as legal representative of the Estate of Willy Mwololo Muindi) v Mutende (Civil Application E049 of 2026) [2026] KECA 1597 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1597 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E049 of 2026 W Karanja, JA July 31, 2026 Between Cecilia Mukulu Mwololo (Suing as legal representative of the Estate of Willy Mwololo Muindi) Applicant and Sundiata Nathan Mutende Respondent (Being an application for leave to file an appeal out of time in an intended appeal from the decision of the Environment and Lan d Court at Machakos (O. A. Angote, J.) dated 7th December 2018InELC Case No. 48 of 2012 (OS) Ruling 1.Although the applicant does not indicate the relevant Court of Appeal Rule on which this application is predicated, it is clear to me that the application before me is one for extension of time to file and serve the record of appeal out of time under Rule 4 of the Rules of this Court. 2.However, the applicant has moved this Court under Rule 47 of the Court of Appeal Rules seeking leave to file the record of appeal out of time. She also asks the Court to grant any other relief that the Court may deem fit and just to issue in the circumstances. 3.Through an originating summons dated 23rd February 2012, the respondent (the plaintiff in the trial court) sought to be declared the owner of a parcel of land namely Machakos/Konza North Block 1/244 by virtue of the fact that he had been in exclusive and uninterrupted possession of the said plot for many years and he was, therefore, entitled to claim the same under adverse possession. 4.The summons was resisted by the respondent but upon hearing both sides the learned Judge allowed the claim by a judgment which was delivered on 7th December 2018. The Court directed that the applicant’s interest in the title to the property has been extinguished by virtue of the doctrine of adverse possession. The Court also directed the Machakos County Land Registrar to rectify the register by deleting the applicant’s name and replacing it with that of the respondent. 5.Being aggrieved by the judgment, the applicant herein says she instructed her counsel then on record, to file a notice of appeal which was done on 18th of February 2018, which was within the prescribed time. The same was also served on the respondent. 6.The applicant then filed an application before the trial court seeking orders to stay the judgment and decree arising therefrom pending the hearing and determination of the intended appeal. The stay orders were granted and execution was, therefore, stayed on 5th June 2020. 7.However, after the stay orders were granted, the applicant went to sleep and did not pursue the appeal. According to the respondent the appellant did not serve him with the record of appeal and they kept waiting until 14th of November 2024 when they filed an application for the stay orders to be vacated. The Court allowed the application and the orders of stay of execution were vacated leaving the respondent at liberty to execute the judgement and decree. 8.According to the applicant it was only after the stay orders were vacated that she discovered that the appeal had not been filed. That was six years after the judgment was delivered. She deposes in her affidavit in support of the application that after she discovered that the advocate had neither filed nor served the record of appeal, she instructed another advocate who filed this application. She says that the delay was not deliberate and that it was her erstwhile advocate’s fault that the appeal was not filed and reiterates that mistake of counsel should not be visited on the client. She, therefore, asks the Court to allow the application and extend time for her to file and serve the record of appeal. 9.The application is opposed by Sundiata Nathan Mutende, the respondent, through an affidavit sworn on 19th of March 2026. According to Sundiata, the applicant in this application was not a party in the originating summons from which the judgement and decree arise. She deposes that the applicant has never moved the Court to seek to be substituted in place of the plaintiff before the trial court, who died on 24th April 2021, 2 years after the judgment had been delivered. The respondent submits that the applicant, therefore, lacks locus standi to move the Court and she is a stranger in these proceedings. She urges the Court to dismiss the application. 10.Both parties have filed submissions for and against the application, expounding on their said averments and depositions. 11.The gravamen of the applicant’s submissions is that it was her counsel who failed to move the Court by way of filing the record of appeal and serving it on the respondent from 2018 when the appeal was filed. The delay in filing the record of appeal is about seven years. The only reason proffered by the applicant for the delay is that the counsel formerly on record was the one to blame for not filing the record of appeal for those 7 years. There is no explanation as to why the applicant never checked on her counsel then on record or with the court registry to enquire as to what had happened to her appeal. This Court has pronounced infinite times that a case belongs to a party and not his/her counsel, hence the responsibility of the party to keep itself abreast of the status of his/ her case. 12.On his part counsel for the respondent through the submissions dated 9th July 2026 opposes the application saying that no action was taken after the Notice of Appeal was filed. Further, that the applicant’s father died in 2021 without taking any action in the matter and that the only inference that can be drawn is that he was not interested in the appeal. Counsel for the respondent maintains that the delay involved which is about seven years is inordinate and has not been explained and the application should, therefore, be dismissed. He maintains that the applicant will not be prejudiced if the application is dismissed, and litigation must come to an end. 13.I have considered the Notice of motion, the rival affidavits and the submissions by both counsel and the relevant law. The law in regard to extension of time is well settled as demonstrated in many decisions of this Court and also the Supreme Court. See Nichola Kiptoo Arap Korir Salat -vs- Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR. 14.In this case, however, I must start by considering whether the applicant has the necessary locus standi to file this application. Locus standi is at the core of jurisdiction and that is why that issue must be resolved before we get to the merits of the application. It is conceded that the plaintiff in the trial court died in 2021 after he had already filed the Notice of Appeal and the applicant herein has not been substituted as a party in this appeal. Although the applicant has demonstrated that she obtained a grant of letters of administration in respect of her late father’s estate, that does not suffice to automatically make her a party to the appeal. She needed to take a step further and file an application for substitution so that she could substitute her late father and file this application in her capacity as the legal representative of her late father’s estate. Absent that order of substitution from the court, then the respondent is right that the applicant lacks the necessary locus standi to pursue this appeal. 15.That being a jurisdictional issue, it would mean that this application is filed by a stranger and the Court has no jurisdiction to entertain it. Once the court finds that it lacks jurisdiction to deal with a matter, then it must down its tools. See OwnersOwners of the Motor Vessel “Lillian S” -vs- Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) I will,therefore, not get into the merits of the application to discuss whether the delay of seven years is inordinate or whether it has been sufficiently explained. 16.It is also worth of mention that as the appellant died in 2021, by the time this application was filed, the suit had already abated. An abated suit cannot carry a live application before the same is reinstated following the procedure provided for under the Court of Appeal Rules. 17.For the foregoing reasons, this application fails and it is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY 2026JUDGE OF APPEALI certify that this is a true copy of the original.SIGNED DEPUTY REGISTRAR................................................