https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1028

Dokhole & another v Esinfecha & 5 others (Civil Application E287 (NYR E043) of 2026) [2026] KECA 1028 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1028 (KLR) Republic of Kenya In the Court of Appeal at Meru Civil Application E287 (NYR E043) of 2026 SG Kairu, JA May 29, 2026 Between Abdulahi Newa Dokhole 1st Appellant Paul Hirbo Isatu 2nd Appellant and Zainabu Esinfecha 1st Respondent Stephen Ali Zachary 2nd Respondent Halati Zachary Godana 3rd Respondent Gomato Wario 4th Respondent Ibrahim Bunge 5th Respondent Mpiraon Raphera Neepa 6th Respondent (Being an application for extension of time to file and serve Record of Appeal out of time arising from the Ruling and Order of the Environment and Land Court of Kenya at Isiolo (O. Mboya, J.) dated 30th June 2025 in ELC Appeal No. E001 of 2023) Ruling 1.In his Notice of Motion application dated 16th March 2026, the 2nd applicant, Paul Hirbo Isatu, seeks an order for extension of time to enable him file “the record of appeal arising from the dismissal of review on 30th June 2025 in ELC Appeal No. E001 of 2023”. He also seeks an order that the record of appeal attached to the application be deemed properly filed. 2.The underlying dispute involves a property known as (Marsabit/Jirme/658, formerly Plot No. 1498A). The applicant claims that he lawfully purchased it from the legal representative of the original owner; that the property was fraudulently and irregularly subdivided into multiple parcels by the respondents without the owner's consent. He instituted suit against the respondents before the Resident Magistrate’s Court at Marsabit seeking declarations that the respondents’ occupation of the suit properties, Marsabit/Jirme/658, 455, 449 and 765 is illegal and unlawful and an order for their eviction, amongst other reliefs. That suit was dismissed in a ruling delivered on 13th June 2023. 3.Aggrieved, the applicants filed an appeal before the ELC, being Isiolo ELC Appeal No. 1 of 2023. That appeal was dismissed by the ELC (Oguttu Mboya, J.) in a ruling delivered on 2nd April 2025. Dissatisfied, and intending to challenge that judgment before this Court, the applicants filed a Notice of Appeal dated 10th July 2025. They also filed an application dated 3rd June 2025 before the ELC. That application was made under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. In it they sought review, or setting aside or variation of the ruling delivered on 2nd April 2025. That application was heard before Oguttu Mboya, J. who dismissed it in a ruling delivered on 30th June 2025. Still dissatisfied and intending to appeal to this Court, the applicants moved the Court by a Notice of Motion application dated 24th November 2025 being Civil Application No. E179 of 2025 seeking leave to file their record of appeal out of time. In the same application they sought a temporary injunction pending appeal. That application was heard before Ali-Aroni, JA. who in a ruling delivered on 30th January 2026 ordered:“The notice of appeal having been filed on time, I direct that the record of appeal be filed and served within the next 30 days of this ruling.” 4.The applicants should therefore have filed and served their record of appeal on or before 1st March 2026. They did not do so. Hence the present application dated 16th March 2026. 5.The legal principles applicable in applications of this nature are well established. Under Rule 4 of the Court of Appeal Rules, the Court has unfettered discretion to extend time. However, that discretion should be exercised judicially. As stated in the case of Fakir Mohamed vs. Joseph Mugambi & 2 Others [2005] eKLR (Civil Application No. Nai. 332 of 2004 (Nyr.32/04)):“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 factor”. 6.The Supreme Court of Kenya in the case of Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others, Supreme Court Application No. 16 of 2014 pronounced that extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court; that extension of time is a consideration on a case to case basis; and that delay should be explained to the satisfaction of the court. Other considerations include whether there will be prejudice suffered by the respondents if the extension is granted; and whether the application is brought without undue delay. Public interest is also a relevant consideration. 7.With those principles in mind, what then is the explanation given by the applicant for failing to heed the direction already given by the Court (Ali-Aroni, JA.) in the ruling delivered on 30th January 2026? 8.In his affidavit in support of the application, the applicant depones that immediately upon receipt of the said ruling delivered on 30th January 2026 , he forwarded a copy thereof to his new advocates by email and shared a draft record of appeal on 10th February 2026 as a reminder and to facilitate timely preparation and filing; that he regularly reminded the advocate on telephone to prepare the record of appeal and paid a deposit of Kshs.20,000 to expedite the preparation and filing of the record of appeal; that three days to the deadline he discovered that the record of appeal had not been filed as directed by the Court; that he immediately commenced preparation of the record of appeal with the assistance of an expert and is ready to file the same without further delay; that the delay is not deliberate or due to his negligence but was occasioned by circumstances beyond his control; that the appeal has high chances of success and the respondents will not suffer any prejudice. 9.During the hearing of the application before me on 22nd May 2026, the applicant appearing in person relied on his written submissions dated 7th May 2026 which he orally highlighted in essence rehashing the contents of the application and the supporting affidavit. He reiterated that the delay involved is neither deliberate nor inordinate; that having previously been granted extension of time, the subsequent delay was caused by the "inadvertence" of newly instructed counsel, who failed to file the Record of Appeal despite the applicants paying the necessary fees and following up regularly; that on the strength of the decision in Philip Chemwolo & Another vs. Augustine Kubende [1986] eKLR, the mistakes of an advocate should not be used to penalize a litigant where the interests of justice demand otherwise. 10.He submitted that the intended appeal is arguable and not frivolous as it concerns the dismissal of an appeal and the refusal of a review by the superior court; that the respondents will not suffer any prejudice that cannot be compensated if the extension is granted; that denying the application would permanently bar the applicants from the appellate process, which they claim would cause grave injustice and violate Article 50 of the Constitution; that this Court should prioritize substantive justice over procedural technicalities, in line with Article 159(2)(d) of the Constitution; and that the application should be allowed and costs be in the cause. 11.In opposition to the application, learned counsel Mr. Nelko Misati appearing for the 1st, 2nd, 3rd, 5th and 6th respondents relied on a replying affidavit sworn by Zainabu Esinfecha and his oral submissions in urging that the application is an abuse of the process of the court; that the applicant having been granted 30 days extension, the deadline for filing the record of appeal lapsed on 1st March 2026; that during the review proceedings before the ELC, the applicant had disengaged the services of his advocates and filed a notice to act in person; that the applicant subsequently filed Civil Application No. E179 of 2025 also acting in person; that in those circumstances the attempt to blame inaction on the alleged failure by his advocates to act is an afterthought and an excuse; that no proof of alleged communication with his advocates is produced and the delay is inordinate; that in any event, it is clear from the applicant’s supporting affidavit that three days prior to the lapse of the 30 days deadline, he was aware that the record had not been filed. 12.It was urged that in further manifestation of the abuse of process and forum shopping, the applicant filed yet another action before the Magistrate’s Court in Marsabit, being MCEL E003 of 2026. 13.I have duly considered the application, the affidavits and the submissions against the stated legal principles. The decision, the subject of intended appeal was delivered on 30th June 2025. As already stated, by an application dated 24th November 2025, filed before this Court in Civil Application No. E179 of 2026, the applicant successfully sought, and was granted an extension of time to file his record of appeal. Therefore, the grounds urged in support of the present application must be considered in the context of the earlier grounds advanced by the applicant in support of his earlier application that was granted. 14.His prayer for extension of time in that application was based on grounds that he had filed and served the notice of appeal dated 10th July 2025 that was lodged on 12th July 2025; that the certified proceedings and rulings were received on 7th October 2025; and that the delay was not intentional. Apart from the fact that the applicant acted in person in Civil Application No. E179 of 2026 as he is doing in the present application, it is clear that as early as 7th October 2025, he was in possession of all the documents that would have been required to complete the preparation of his record of appeal. Little else required to be done in terms of preparation of the record beyond assembly once he was granted 30 days extension. Indeed, as noted by Ali-Aroni, JA. in the ruling extending time the record of appeal should have been filed by 9th September 2025 . 15.Apart from the delay that was excused by the Court in granting the applicant a further 30 days, there is an additional 16 days that needed to be explained. And while there is no minimum or maximum period of delay, the applicant should give a plausible explanation for the delay. See Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR cited in Sakari vs. Anyumba (Civil Application E170 of 2021) 2024 KECA 790(KLR). The explanation for the about 16 days’ delay in approaching the Court with the present application, and the failure to meet the 30 days’ deadline given by the Court is that there was inadvertence of counsel to whom the applicant had forwarded the documents and paid a deposit of Kshs. 20,000.00 on 17th February 2026. 16.Having promptly received the ruling extending time on 30th January 2026, why did the applicant wait for another 17 days to instruct counsel who it would appear never heeded instructions for reasons that are not explained? It bears repeating as was stated by the Supreme Court in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others, (above), that extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court and the party seeking extension of time has the burden to lay a basis to the satisfaction of the court. 17.The Applicant blames the delay on inadvertence of newly instructed counsel and provides an M-Pesa transaction receipt as proof of retainer. The respondents correctly point out that the applicant previously acted in person, as is the case in the present application. Nothing is produced by the applicant, beyond the said receipt and email extract to show that he indeed promptly appointed counsel in connection with this specific matter as he alleged. 18.It is not clear why, having received the ruling extending time on 30th January 2026, he waited for another ten days to email his lawyer on 10th February 2026. In Kissi Petroleum Products Limited vs. Kobil Petroleum Limited & 2 Others [2006] KECA 291 (KLR), this Court emphasized the need for candor of an applicant seeking exercise of discretion. Moreover, the decision in the case of Philip Chemwolo & Another vs. Augustine Kubende stands for the proposition that a person applying for extension of time must be diligent. 19.The applicant was indubitably aware of the 1st March 2026 deadline. Even if counsel was sluggish, a diligent litigant who has previously conducted matters in person would have taken immediate steps to ensure compliance before the expiration of a court-mandated deadline. 20.I do not think that Article 159(2)(d) of the Constitution is of any assistance to the applicant given the circumstances in this case. As urged by counsel for the respondents, litigation must come to an end. See Alex Njue Kithangari & 4 Others vs. Benson Gichohi Mutahi [2024] eKLR (SC Application E024 of 2024). 21.I am not persuaded that the applicant has laid a proper basis, for the Court to yet again exercise its discretion in his favour to extend time. Having already been granted extension of time, the applicant should have been more vigilant in ensuring that he was not again late in doing that which was required of him. In that regard, there is no evidence of exercise diligence on his part and it is not enough for him to blame counsel. The applicant’s application dated 16th March 2026 fails and is hereby dismissed with costs to the respondents. DATED AND DELIVERED AT MERU THIS 29TH DAY OF MAY 2026.S. GATEMBU KAIRU, FCIArb, CArb..............................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR