https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1074

County Government of Nakuru v Walia (Civil Application E001 of 2026) [2026] KECA 1074 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KECA 1074 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E001 of 2026 JM Mativo, JA June 3, 2026 [IN CHAMBERS] Between County Government of Nakuru Applicant and Anil Walia Respondent (Being an application for extension of time within which to lodge a record of appeal against the judgment of the Environment and Land Court of Kenya at Nakuru (M. A. Odeny, J.) dated 4th July 2024 Environment & Land Case 37 of 2020 ) Ruling 1.The County Government of Nakuru (the applicant) in its application dated 31st March 2026 is beseeching this Court to issue an order deeming the notice of appeal dated 17th July 2024 as properly filed. It also prays for extension of time to file its appeal against the judgment delivered on 4th July 2024 by Odeny, J. in Nakuru ELC Case No. E037 of 2020. The application is premised on the provisions of Article 159 (2) of the Constitution and Rules 4 and 85 (1) of the Court of Appeal Rules, 2022. 2.The application is premised on the following grounds:(a)on 17th July 2024, the applicant filed and served a notice of appeal and requested for typed proceedings and a copy of the judgment;(b)the proceedings were typed and were ready for collection on 20th May 2025;(c)the applicant applied for extraction of the decree, but the same is yet to be availed;(d)the requisite period for filing the appeal has lapsed necessitating this application;(e)the delay in filing the appeal is not inordinate, therefore, it is excusable;(f)the applicant has an arguable appeal with high chances of success, and,(g)the application has been brought in good faith and without delay. 3.The respondent filed a replying affidavit dated 16th January 2026 sworn by Githui John advocate. The salient averments are that:a.the proceedings were ready on 20th May 2025;(b)the last day for filing the appeal was 20th July 2025;(c)there has been a lapse of 164 days;(d)the applicant was required to prepare a draft decree and forward to the respondent’s counsel for approval, but he failed to do so;(e)the assertion that counsel was out of office is not compelling considering that he is not the only counsel in his office, and(f)compliance with timelines is an integral part of the administration of justice. 4.The applicant filed a supplementary affidavit dated 24th April 2026 stating that the orders sought herein are different from the orders sought in the previous application that was dismissed. Further, the court in the previous ruling did not deem the notice of appeal as withdrawn, but rather it noted that it was the time for lodging the appeal that should have been extended. 5.In support of the application, the applicant filed submissions dated 24t April 2026 essentially urging that the delay has been sufficiently explained and relied on Andrew Kiplangat Chemaringo v. Paul Kipkorir Kibet [2018] KECA 701 (KLR) to urge that the law does not set out any minimum period of delay, rather, it requires that delay to be explained. The applicant also maintained that its intended appeal has high chances of success and cited this Court’s decision in Stanley Kangethe Kinyanjui v Tonny Ketter & 5 Others [2013] eKLR. Lastly, the applicant argued that the respondent will not suffer any prejudice if no stay is granted. 6.The respondent filed submissions dated 27th April 2026. The first part of the submissions challenges the competence of the application on three fronts. One, the application has been filed within the proceedings of an earlier application which was dismissed by this Court, therefore, this Court became functus officio. If the applicant was dissatisfied with the decision of a single judge, it ought to have applied for reference. Second, the applicant prays that the notice of appeal be deemed as properly filed yet the said notice was deemed as withdrawn. The applicant has not prayed for extension of time to file a fresh notice. Third, the prayers sought are “constructively res judicata.” 7.On merits of the application, counsel cited Andrew Kiplangat Chemaringo v. Paul Kipkorir Kibet [2018] eKLR to urge that the applicant has not satisfactorily explained the delay. Also, counsel cited Bartilol & 3 others v. Bartilol & Ano. (Civil Application No. 001 of 2024) [2024] KECA 607 (KLR) in support of the proposition that this Court’s discretion to extent time only comes into existence after sufficient reason for extending time has been established. 8.The respondent’s counsel has raised three pertinent points of law effectively erecting a hurdle which the applicant must surmount to succeed in this application. The arguments touch on the competence of the notice of appeal and the entire application. In my view, the principle that a notice of appeal ceases to exist in law once it is deemed withdrawn is firmly anchored in the Court of Appeal Rules. Under Rule 85 (1) of the Court of Appeal Rules, 2022, if a party lodges a notice of appeal but fails to institute the actual appeal (by filing the record and memorandum of appeal) within sixty (60) days, the notice is deemed by operation of law to have been withdrawn. Similarly, if the notice of appeal is deemed to be withdrawn by the Court, it ceases to extent. Therefore, a party cannot by any stretch of imagination apply to have be deemed as properly filed. 9.This Court in John Mutai Mwangi & 26 Others v. Mwenja Ngure & 4 Others [2016] eKLR explicitly characterized the above rule as an "in-built case-management system" meant to clean up court registries of defunct litigations. The court held that the deeming provision effectively concludes that the intended appellant has abandoned their intention to appeal. Once the 60- day period expires without an appeal being instituted, the notice loses all functional capacity to stop execution or protect the appellant. 10.Similarly, in Mae Properties Limited v. Joseph Kibe & Ano. [2017] eKLR, this Court ruled that upon the lapse of the prescribed timeline to institute an appeal, the notice of appeal "dies a natural death." Because it dies a natural death, it is legally spent and cannot be relied upon to sustain any subsequent application (such as an application for stay of execution under Rule 5 (2) (b)) because there is no longer a valid "intended appeal" before the Court. Similarly, where a notice of appeal is deemed as withdrawn by the Court, there is nothing for the Court to deem as properly filed. There is no prayer before me to resuscitate the earlier notice of appeal. This ground alone is sufficient to dismiss this application. It will add no value for me to discuss the other preliminary grounds urged by the respondent’s counsel. 11.Nevertheless, I will address the merits of the application. I have considered the application, the affidavit in support thereto and its annextures, the replying affidavit, and the written submissions. The only question for determination is whether the applicant has met the threshold for the exercise of this Court’s discretion to grant the leave/extension of time sought. The application is governed by Rule 4 of the Court of Appeal Rules, 2022 which 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, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.” 12.The Supreme Court in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR summed up the applicable considerations as follows:i.Extension of time is not right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;ii.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court;iii.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case- to-case basis;iv.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;v.Whether there will be any prejudice suffered by the respondents if the extension is granted;vi.Whether the application has been brought without undue delay; and,vii.Whether in certain cases, like election petitions, public interest should be a consideration for extending time. 13.Based on the cited decision, it is apparent that this application will be dispensed by determining whether the applicant has tendered sufficient reasons for not filing their notice of appeal and record of appeal within the stipulated time and whether the respondents will suffer any prejudice should the application be allowed. 14.Pursuant to the provisions of Rule 77 (2) of the Court of Appeal Rules, 2022, and considering that the judgment was delivered on 4th July 2024, the notice of appeal ought to have been filed by 18th July 2024. The applicant states that it filed its notice of appeal on 17th July 2024. It is yet to file the record of appeal. It claims that the decree is yet to be extracted. The present application is however dated 31st March 2026 after a delay of over two years. The Supreme Court of Kenya pronounced itself in the question of extension of time in the case of Andrew Kiplagat Chemaringo v. Paul Kipkorir Kibet (supra) stated as follows: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.” 15.The explanation proffered by the applicants on the face of it appears to be plausible. The respondent’s counsel has maintained that under the rules, the applicant was required to initiate the process of extracting the decree by forwarding a copy to the respondent’s counsel for approval and then proceed to forward it to the Court for endorsement. However, Order 21 Rule 8 clearly states that “any party in a suit in the High Court may prepare a draft decree….” Therefore, any party to a suit in the High Court may prepare a draft decree. However, in practice, the successful party takes the initiative to "extract" the decree so they can proceed to execution. 16.Even though legally the responsibility to extract a decree under the above rule cuts both ways, equity aids the vigilant, not the indolent. A party cannot use their own delay or failure to extract a decree as an excuse to extend the statutory time required to file an appeal. Under the Civil Procedure Act, the aggrieved (losing) party bears the primary responsibility to ensure their appeal is filed on time, regardless of whether the successful party has extracted the decree or not. 17.According to Section 2 of the Civil Procedure Act, for the purposes of an appeal, a "decree" includes a judgment. Our courts have repeatedly ruled that a judgment is appealable whether the formal decree has been extracted or not. An appellant can file a memorandum of appeal within the 30-day window to preserve their timeline. They can file a certified copy of the formal decree at a later stage once it becomes available. Therefore, the argument that the applicant was waiting for the decree which in any event they had not drafted is untenable. 18.If a party approaches the Court seeking extension of time to appeal, they must show a "good and sufficient cause". If the Court discovers that the applicant took absolutely no steps to draft, follow up, or extract the decree "for settlement" using Order 21, Rule 8, the Court will deny the application. The Court will rule that the delay was self-inflicted and caused by their own indolence. In Board of Governors of Nairobi School v. Industrial Area Timber Mart Ltd [1983] eKLR the Court held that an intended applicant cannot sit back, fail to take any steps to extract a decree or order, and then claim they are late because a formal decree was never ready. If a party sits on their hands and takes no action, they cannot later weaponize that inactivity to ask the Court for an extension of time. The Court will tell them: "If the other side didn't extract it, why didn't you extract it yourself to protect your right of appeal?" 19.There is simply no good reason to exercise the Court’s discretion for the benefit of the applicant in this case. In conclusion, I dismiss the applicant’s application dated 31st March 2026 with no order as to costs. DATED AND DELIVERED AT NAKURU THIS 3RD DAY OF JUNE, 2026.J. MATIVOJUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR