https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1180

Randu v Sweet Pie Company Ltd (Civil Application E004 of 2026) [2026] KECA 1180 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KECA 1180 (KLR) Republic of Kenya In the Court of Appeal at Malindi Civil Application E004 of 2026 SO Okong'o, JA June 19, 2026 Between Daniel Hare Randu Applicant and Sweet Pie Company Limited Respondent (An application for extension of time to file a Notice of Appeal and Record of Appeal in an intended appeal from the Judgment and Decree of the Environment and Land Court at Malindi (E. K. Makori, J.) delivered on 25th November 2025 in ELC Case No. E011 of 2023) Ruling 1.What is before me is an Amended Notice of Motion application dated 29th December 2025 brought by the Applicant under Rule 4 of the Court of Appeal Rules 2022 (Rules) seeking extension of time to file a Notice of Appeal against the Judgment and Decree of the Environment and Land Court (ELC) at Malindi delivered on 25th November 2025. The application is supported by the Applicant's affidavit and further affidavit sworn on 29th December 2025 and 20th May 2026, respectively. The Applicant averred that he was dissatisfied with the said judgment of the ELC and wished to appeal against the same; that he only learnt of the judgment after the time within which to file a Notice of Appeal had lapsed; that his intended appeal was arguable in that the learned judge of the ELC failed to analyse, evaluate and interpret the evidence tendered before him and relied on irrelevant material in his judgment against the Applicant; and that he never instructed his previous advocates to file a Notice and Record of Appeal out of time without leave of the Court; and that he had taken steps to withdraw the irregular appeal. 2.The application was opposed by the Respondent through a replying affidavit and supplementary affidavit of its director, Rory Keegan sworn on 26th February 2026 and 2nd March 2026, respectively. In the affidavits, he averred that the Applicant’s application was an abuse of the process of the Court since the Applicant had already, albeit irregularly, filed a Notice of Appeal dated 15th January 2026 and a Record of Appeal dated 22nd January 2026, in Malindi Civil Appeal No. E006 of 2025, Daniel Hare Randu v. Sweet Pie Company Limited; that the said irregular Notice and Record of Appeal were filed while the present application was pending; that the Respondent had applied to have the same struck out for having been filed out of time; that the reasons given by the Applicant for the delay in filing the Notice of Appeal on time were not plausible, were flimsy and contradictory; that the intended appeal was not arguable in that the Applicant’s claim was not proved while the Respondent’s counterclaim was established with evidence which was uncontroverted; and that the Respondent would suffer prejudice if the application was allowed, as the Applicant had a pending incompetent appeal and would have been allowed again to file hopeless appeal with no prospects of success. 3.At the hearing of the application, learned counsel, Ms. Gichuhi appeared for the Applicant, while learned counsel, Mr. Njuguna appeared for the Respondent. Ms. Gichuhi relied on her written submissions dated 20th May 2026, which she highlighted briefly. She reiterated that the Applicant learnt of the impugned judgment after the expiry of the prescribed period for filing a Notice of Appeal; that the delay was not deliberate or intentional; that the same resulted from a breakdown of communication between the Applicant and his previous advocates; and that the subsequent belated filing of the Notice and Record of Appeal by the Applicant’s said previous advocates was clear evidence of that breakdown in communication. 4.Mr. Njuguna similarly relied on his written submissions dated 25th May 2026. Highlighting the said submissions, Mr. Njuguna submitted that the reasons given by the Applicant for the delay in filing a Notice of Appeal were mere allegations without substance. On the arguability of the intended appeal, he submitted that the issues raised as the basis of the intended appeal were not pleaded in the ELC and could not be raised in the appeal. He reiterated that the application was an abuse of the court process, as the Applicant had already filed a Notice of Appeal and Record of Appeal against the impugned judgment, albeit irregularly. 5.I have considered the application together with the affidavits filed in support thereof, the affidavits filed by the Respondent in response thereto, and the submissions by the advocates for the parties, both oral and written. 6.Rule 4 of the Rules provides as follows:“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 a superior court, for the doing of any act authorized or required by the 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.” 7.In the case of Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court laid down the following general principles on the exercise of discretion in applications for extension of time:“84.From the above caselaw, it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant.85.……, we derive the following as the under- lying principles that a court should consider in exercise of such discretion: Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 8.In Fakir Mohammed vs. Joseph Mugambi & 2 others [2005] eKLR (Civil Application No. Nai. 332 of 2004 (Nyr. 32/04)), the court stated that:“The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path since the stricture of “sufficient reason” was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possible) 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.” 9.In Mwangi vs. Kenya Airways Ltd (2003) KRL 486, the court stated that:“Over the years, the Court has set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance in Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1977) (unreported), the Court expressed itself thus:“It is now well settled that the decision whether or not to extend the 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.’” 10.In Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] KECA 701 (KLR), the court stated that:“[12]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.” 11.Rule 4 of the Rules gives this Court unfettered discretion to grant an extension of time. The discretion must, however, be exercised judiciously. Under Rule 77 of the Rules, the Applicant should have filed a Notice of Appeal against the impugned judgment by 9th December 2025. The Applicant has contended that he learnt of the impugned judgment on 15th December 2025. The present application was filed on 29th December 2025; 14 days from the date when the Applicant is said to have learnt of the judgment and 20 days after the expiry of the time the Applicant was supposed to file the Notice of Appeal. The reason given by the Applicant for the delay in filing the Notice of Appeal is miscommunication between him and his previous advocates, and his advanced age; he is said to be 93 years old. The Applicant has contended that his advocates never notified him of the delivery of the judgment; and that when he learnt of it, he had difficulty getting a copy thereof. The Applicant has averred that he filed the present application soon after learning of the judgment and obtaining a copy thereof. 12.The Respondent’s objection to the application is three- pronged; first, that the delay in filing the application is not well explained with necessary particulars; secondly, that the application is an abuse of the process of the court since the Applicant has already filed an irregular Notice and Record of Appeal against which an application for striking out has been filed; and finally, that the intended appeal is not arguable as most of the issues raised in the draft memorandum of appeal were not pleaded and as such were not dealt with by the ELC to be the subject of the intended appeal. 13.It is my finding upon consideration of the matter that the delay in the filing of the present application is not inordinate. The application was filed 20 days after the expiry of the time within which the Applicant should have filed the Notice of Appeal. I also find the Applicant's explanation for his failure to file the Notice of Appeal within time to be reasonable. On the material before me, I have no reason to doubt the Applicant’s claim that his previous advocates never notified him of the delivery of the judgment; that when he learned of the same, he was unable to get in touch with the said advocates; and that he had to send his daughter to the court registry to obtain a copy of the judgment due to his advanced age. Although the Respondent has contended that these are mere allegations, there is no evidence rebutting the same. On the issue of the application being an abuse of the process of the court on account of the fact that the Applicant had filed a Notice of Appeal and a Record of Appeal while the present application is pending, the less said about the said filings, the better for now, since the Applicant has denied instructing his previous advocates to file the said documents and the same are the subject of a pending application for striking out before the full bench of this court. 14.On the arguability of the intended appeal, this court cannot discuss the merit of the appeal at this stage. It is settled that an arguable appeal is not one that must succeed. In Stanley Kang’ethe Kinyanjui vs. Tony Ketter & 5 others [2013] eKLR, this Court stated as follows:“vi)On whether the appeal is arguable, it is sufficient if a single bonafide arguable ground of appeal is raised. Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004.vii.An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008.” 15.The Applicant has set out several grounds in the body of his application for challenging the ELC's judgment. All those grounds are arguable in my view. I have no jurisdiction at this stage to determine the merit of each of the said grounds, particularly whether the issues raised in the said grounds were not pleaded, and as such, cannot form a basis for the intended appeal. On a possible prejudice to the Respondent, I am not convinced that, in allowing the application, the Respondent would be forced to defend “a hopeless” and unarguable appeal as it has claimed. 16.The upshot of the foregoing is that the application before me has merit. The time within which the Applicant was to file a Notice of Appeal against the Judgment and Decree of the Environment and Land Court at Malindi (E. K. Makori J.) made on 25th November 2025 in ELC Case No. E011 of 2023 is hereby extended. The Applicant shall file and serve the Notice of Appeal within 14 days from the date hereof. Each party shall bear its costs of the application. DATED AND DELIVERED AT MOMBASA THIS 19TH DAY OF JUNE, 2026.S. O. OKONG’O...................................JUDGE OF APPEALI certify that this is the true copy of the originalsignedDeputy Registrar